State v. Crump

145 Conn.App. 749

75 A.3d 758

STATE of Connecticut

v.Durosola CRUMP.

No. 33467.

Appellate Court of Connecticut.

Argued March 8, 2013.

Decided Sept. 17, 2013.

Pamela S. Nagy, assigned counsel, for the appellant (defendant).

Joseph T. Corradino, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Kiran Rosenkilde and Peter Malfa, certified legal interns, for the appellee (state).

DiPENTIMA, C.J., and ALVORD and PETERS, Js.

ALVORD, J.

The defendant, Durosola Crump, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a (a)(1)(A), two counts of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–70 (a)(2), three counts of risk of injury to a child in violation of General Statutes § 53–21(a)(1), and three counts of risk of injury to a child in violation of § 53–21(a)(2). The defendant claims that (1) the prosecutorial improprieties that occurred throughout the trial and summation deprived him of a fair trial, and (2) the sentence for attempted first degree assault, as well as the conditions that the defendant undergo psychiatric counseling and contribute to the sexual assault victims fund, were illegal. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In January, 2009, the victim ¹ was eleven years old and lived in Bridgeport with her mother, her older sister, and her twin brother. The victim's grandmother resided in a different house in Bridgeport with her adult son, her live-in boyfriend, and two adopted children. The defendant, an adult, is the victim's first cousin once removed and the nephew of the victim's grandmother.

The incidents leading to the defendant's conviction occurred at the victim's grandmother's house on three separate occasions. The first incident involved the defendant fondling the victim's breasts when she was alone in the living room. The second incident involved the defendant attempting to have sexual intercourse with the victim when she was alone in the garage. The third incident involved the defendantforcing the victim to perform oral sex on him when she was alone in the living room.²

The victim did not disclose any of the incidents involving the defendant until February 2, 2009, when she told her brother, who subsequently told their mother. Immediately thereafter, the victim's mother called the police and took the family to the house of the victim's grandmother, where officers from the Bridgeport Police Department then spoke with the victim in person. On February 10, 2009, the victim was interviewed at the Center for Women and Families by a forensic interviewer. Her recounting of the incidents during the interview differed from the testimony she gave subsequently at trial. The next day, on February 11, 2009, the victim was examined by a pediatric nurse practitioner at the Child Sexual Abuse Evaluation Clinic at Yale–New Haven Hospital. This examination neither confirmed nor refuted the victim's allegations.

The state charged the defendant by amended information with one count of sexual assault in the fourth degree in violation of § 53a–73a (a)(1)(A), two counts of attempt to commit sexual assault in first degree in violation of §§ 53a–49 (a)(2) and 53a–70 (a)(2), three counts of risk of injury to a child in violation of § 53–21(a)(1), and three counts of risk of injury to a child in violation of § 53–21(a)(2). The jury returned a guilty verdict on all counts. The court rendered judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective term of twenty-five years of incarceration. This appeal followed.

I

The defendant first claims that prosecutorial impropriety during the course of the proceedings deprived him of his due process right to a fair trial.³ Specifically, he argues that the prosecutor committed deliberate impropriety by (1) commenting on the defendant's failure to testify at trial; (2) vouching for the victim's credibility; (3) engaging in a course of action designed to generate sympathy for the victim; and (4) commenting on facts outside of the record. We conclude that the prosecutor did improperly comment on facts outside of the record; however, those comments did not deprive the defendant of a fair trial.

Before addressing the merits of the defendant's claims, we set forth the law governing prosecutorial impropriety. “[I]n analyzing claims of prosecutorial [impropriety], [this court] engage[s] in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.... [W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show ... that the remarks were improper....” (Citation omitted; internal quotation marks omitted.) State v. Taft, 306 Conn. 749, 761–62, 51 A.3d 988 (2012). “[T]o deprive a defendant of his constitutional right to a fair trial ... the prosecutor's conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.... We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial [impropriety].” (Internal quotation marks omitted.) State v. Campbell, 141 Conn.App. 55, 60, 60 A.3d 967, cert. denied, 308 Conn. 933, 64 A.3d 331 (2013).

When determining whether the prosecutor's conduct constituted impropriety, we are mindful of the unique responsibilities of the prosecutor in our judicial system and the great influence a prosecutor may have on the jury. See State v. Fauci, 282 Conn. 23, 32–33, 917 A.2d 978 (2007). At the same time, we “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. Jordan, 132 Conn.App. 817, 828–29, 33 A.3d 307, cert. denied, 304 Conn. 909, 39 A.3d 1119 (2012).

When reviewing an allegation that the prosecutor improperly commented on the defendant's failure to testify, “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? ... [W]e must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury.” (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 269, 833 A.2d 363 (2003).

With respect to the remaining claims of impropriety, our review is as follows. “We consistently have held that it is improper for a prosecuting attorney to express his or her own opinion, directly or indirectly, as to the credibility of witnesses.” (Internal quotation marks omitted.) State v. Long, 293 Conn. 31, 38, 975 A.2d 660 (2009). At the same time, “[t]he prosecutor ... is not barred from commenting on the evidence presented at trial or urging the jury to draw reasonable inferences from the evidence that support the state's theory of the case.... We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade [it] to draw inferences in the state's favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand.” (Internal quotation marks omitted.) Id.

Next, “[i]t is well established that, [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors.... [S]uch appeals should be avoided because they have the effect of diverting the jury's attention from their duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Bermudez, 274 Conn. 581, 595–96, 876 A.2d 1162 (2005). “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.” (Internalquotation marks omitted.) State v. Santiago, 143 Conn.App. 26, 40, 66 A.3d 520 (2013).

Finally, it is well established that “a prosecutor, in fulfilling his duties, must confine himself to the evidence in the record.... Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” Internal quotation marks omitted.) State v. Jones, 135 Conn.App. 788, 801, 44 A.3d 848, cert. denied, 305 Conn. 925, 47 A.3d 885 (2012). “A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence.” Id. When deciding cases, however, “jurors ... are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion.... Therefore, it is entirely proper for counsel to appeal to a jury's common sense in closing remarks.” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 365, 897 A.2d 569 (2006).

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