State v. Long

975 A.2d 660

293 Conn. 31

STATE of Connecticut v. Deion J. LONG.

No. 18245.

Supreme Court of Connecticut.

Argued February 18, 2009.

Decided August 11, 2009.

Steven B. Rasile, special public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brian Sibley, assistant state's attorney, for the appellee (state).

ROGERS, C. J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The defendant, Deion J. Long, appeals¹ from the judgment of conviction of one count of risk of injury to a child in violation of General Statutes (Rev to 2005) § 53-21(a)(2).² On appeal, the defendant claims that the remarks of the assistant state's attorney (prosecutor) to the jury in his closing and rebuttal arguments were improper and deprived him of his constitutional right to a fair trial.³ We disagree with the defendant and, therefore, affirm the judgment of the trial court.

A jury reasonably could have found the following facts. On Friday, July 15, 2005, the fourteen year old victim, C,⁴ and her sister arrived home from summer camp in the afternoon. Shortly thereafter, the defendant visited the apartment where C and C's mother and sister lived. The defendant's wife was friendly with C's mother, and C and her family knew the defendant through his wife. C and her family were all home when the defendant first arrived at the apartment. During this initial visit, the defendant entered C's bedroom, where she was lying on the bed under the covers, and attempted to make conversation with her. Finding C unresponsive, he left her room and returned to the kitchen. The defendant thereafter left the apartment with C's mother to drive her to a store, leaving C and her sister alone in the apartment.

The defendant later returned to the apartment alone and entered through the rear apartment door. At that time, C was resting on her bed, under the covers, wearing only her underwear.⁵ After C's sister spoke briefly with the defendant in the kitchen and saw him enter C's bedroom, C's sister returned to her own upstairs bedroom. C, who had fallen asleep when the defendant and her mother left the house, awoke when she heard her bedroom door open. Upon entering C's bedroom, the defendant asked her why she was so tired. C did not answer but turned her head toward the defendant. The defendant then asked C if she had a boyfriend. She replied "no." The defendant then began rubbing C's back with one finger, moving it "[u]p and down in the middle of [her] back."

The defendant then removed the covers and pulled C toward him, exposing her bare chest. C tried to free herself but could not because the defendant was holding her left arm tightly. She told him to get off her, but the defendant refused and, instead, licked her left nipple.⁶ C told him to stop and attempted to push his head away. Eventually, C was able to free herself.

The defendant picked up one of C's shirts, tossed it at her,⁷ and told her to walk him to the door. Upon leaving, the defendant told C that he would be back on Monday. After the defendant left, C took a long shower because she felt "disgusting." Two days later, C told her mother and her sister what the defendant had done to her. She thereafter went to Yale-New Haven Hospital, where she complained that her arm was hurting her. On July 25, 2005, C gave a statement to police recounting these events. Additional facts will be set forth as necessary.

The defendant first alleges numerous instances of prosecutorial impropriety in the prosecutor's closing and rebuttal arguments that, he claims, deprived him of a fair trial. The defendant's claims can be categorized into three groups. He claims that the prosecutor, in addressing the jury, (1) expressed personal opinion, (2) appealed to the emotions and passions of the jurors, and (3) commented on or suggested that the jurors draw inferences from facts not in evidence. The state asserts that the prosecutor's comments were not improper, and, even if they were improper, they nevertheless did not prejudice the defendant so as to undermine the fairness of his trial. We conclude that, with one exception, the prosecutor's comments were not improper. We further conclude that the one improper comment was minor and isolated and, therefore, did not prejudice the defendant so as to deprive him of a fair trial under the multifactor analysis set forth in State v. Williams, 204 Conn. 523, 539-40, 529 A.2d 653 (1987).

We begin by setting forth the applicable law regarding prosecutorial impropriety claims. "In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. E.g., State v. Stevenson, 269 Conn. 563, 572, 849 A.2d 626 (2004). The two steps are separate and distinct. Id. We first examine whether prosecutorial impropriety occurred. Id. Second, if an impropriety existsl we then examine whether it deprived the defendant of his due process right to a fair trial. Id. 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. See id."⁸ State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978 (2007).

Prosecutorial impropriety can occur during both the cross-examination of witnesses and in the course of closing or rebuttal argument. See State v. Williams, supra, 204 Conn. at 538-39, 529 A.2d 653. In the event that such impropriety does occur, it warrants the remedy of a new trial only when the defendant can show that the impropriety was so egregious that it served to deny him his constitutional right to a fair trial. See id., at 538-40, 529 A.2d 653. "To prove prosecutorial [impropriety], the defendant must demonstrate substantial prejudice.... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process." (Citations omitted.) State v. Alexander, 254 Conn. 290, 303, 755 A.2d 868 (2000). In weighing the significance of an instance of prosecutorial impropriety, a reviewing court must consider the entire context of the trial, and "[t]he question of whether the defendant has been prejudiced by prosecutorial [impropriety] ... depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties." State v. Thompson, 266 Conn. 440, 460, 832 A.2d 626 (2003). With these principles in mind, we turn to an examination of the allegedly improper statements.

I

EXPRESSION OF PERSONAL OPINION AND COMMENTS ON FACTS NOT IN EVIDENCE

A Closing Argument

The defendant first claims that, during closing argument, the prosecutor improperly expressed his personal opinion regarding C's credibility and the veracity of her accusations. "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." State v. Fauci, supra, 282 Conn. at 35, 917 A.2d 978. "Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor's special position.... Put another way, the prosecutor's opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state's] judgment rather than its own view of the evidence.... Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions." (Citations omitted; internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. at 462, 832 A.2d 626.

The prosecutor, however, 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, including the defendant's guilt. "It is not improper for the prosecutor to comment [on] the evidence presented at trial and to argue the inferences that the [jury] might draw therefrom.... 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. The [prosecutor] should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows, or the like." (Citation omitted; internal quotation marks omitted.) Id., at 465-66, 832 A.2d 626.

We begin with the statements that the prosecutor made in closing argument, which, according to the defendant, represent an improper expression of personal opinion on C's credibility. The first three comments that the defendant highlights clearly were intended to rebut defense counsel's suggestion, made during cross-examination of C,⁹ that C's testimony was not credible because she did not recall various details that she had provided in previous statements to the police. First, the prosecutor appealed to the jurors' common sense regarding a young person's ability to remember certain details of a traumatic event after a considerable lapse of time. The prosecutor specifically remarked: "Remember, we're talking about teenagers, asking them to recall events, specific details, something that happened more than a year and a half ago. You have July 15, 2005. What would you expect, to hear every specific detail, or some things that have lapsed out of your memory?"¹⁰ (Emphasis added.) The prosecutor then asked the jurors to draw an analogy from their common...