State v. PEDRO S.

865 A.2d 1177

87 Conn.App. 183

STATE of Connecticut v. PEDRO S.¹

No. 24096.

Appellate Court of Connecticut.

Argued October 20, 2004.

Decided February 1, 2005.

Arnold V. Amore II, special public defender, for the appellant (defendant).

Theresa Anne Ferryman, senior assistant state's attorney, with whom, on the brief, was Kevin T. Kane, state's attorney, for the appellee (state).

FOTI, DiPENTIMA and FRANCIS X. HENNESSY, Js.

Opinion

FOTI, J.

The defendant, Pedro S., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1), sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1), risk of injury to a child in violation of General Statutes § 53-21(a)(2) and sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(2).² The defendant claims that (1) prosecutorial misconduct deprived him of a fair trial and (2) the evidence did not support the jury's verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 24, 2001, the victim was thirteen years old. She lived in New Haven with her mother, an older sister and a younger brother. Her father, the defendant, was divorced from the victim's mother and lived in New London. The defendant routinely spent time with the victim away from her home and, on December 24, 2001, drove her and her brother to his apartment, where they stayed the night.

Sometime during the night, the victim, who was asleep on a sofa in the defendant's living room, awoke to discover the defendant touching her. The victim attempted to push the defendant away, but he did not leave her alone. The defendant pulled the victim's pants down and performed cunnilingus on her.³ The victim kicked and struck the defendant in an effort to resist his assault. The defendant told the victim not to tell anyone what he had done. The defendant told the victim that she did not "want him to go to jail." As a result of the defendant's actions, the victim sustained, among other injuries, bruises on her legs. The defendant drove the victim and her brother home on December 25, 2001, and the victim reported the incident to her older sister and to her mother. The victim sought medical assistance at Yale-New Haven Hospital, where medical personnel examined her. The victim thereafter reported the incident to the New London police. The defendant's arrest followed. Additional facts will be set forth as necessary.

I

The defendant first claims that prosecutorial misconduct deprived him of a fair trial. The defendant concedes that he did not preserve his claim at trial. He argues that appellate review is warranted under (1) the plain error doctrine, codified in Practice Book § 60-5, (2) the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or (3) the exercise of our supervisory powers. We will review the claim following the analytic approach set forth by our Supreme Court in State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). In Stevenson, our Supreme Court enunciated a new analytical approach to reviewing unpreserved claims of prosecutorial misconduct. The court held that "following a determination that prosecutorial misconduct has occurred, regardless of whether it was objected to, an appellate court must apply the ... factors [set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)] to the entire trial." State v. Stevenson, supra, at 575, 849 A.2d 626. The defendant's claim is based on arguments advanced by the prosecutor during closing argument. Before we review the challenged remarks, we set forth our standard of review.

Prosecutorial misconduct claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute misconduct. Second, if misconduct occurred, the reviewing court must then determine if the defendant has demonstrated substantial prejudice. State v. Singh, 259 Conn. 693, 699, 793 A.2d 226 (2002). "In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process." (Internal quotation marks omitted.) Id., at 699-700, 793 A.2d 226.

"In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process [a reviewing court should focus] on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument ... the severity of the misconduct ... the frequency of the misconduct ... the centrality of the misconduct to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state's case." (Citations omitted.) State v. Williams, supra, 204 Conn. at 540, 529 A.2d 653. Additionally, a reviewing court must consider whether the defendant objected, requested a curative instruction to the jury or moved for a mistrial on the basis of the misconduct. See State v. Rowe, 85 Conn.App. 563, 574-75, 858 A.2d 792, cert. granted on other grounds, 272 Conn. 906, 863 A.2d 699 (2004).

A

The defendant claims that the prosecutor committed misconduct in that she expressed her personal opinion concerning the victim's credibility. The remarks of which the defendant complains follow.

During her closing argument, the prosecutor discussed the charges against the defendant and then argued in relevant part as follows: "If you accept [the victim's] testimony beyond a reasonable doubt, you will find that the state has proven these charges. The elements are really not what's at issue here. What's at issue here is credibility. This is a credibility case. It's all about whose testimony you accept and whether you accept it beyond a reasonable doubt. The state's case rests squarely on the shoulders of [the victim], and that's really not a bad place to start, from the state's point of view. [The victim] is a fourteen year old girl from New Haven, comes here to a strange court in Norwich and under oath — not a small thing — under oath testifies that [the defendant] had intercourse with her during a Christmas visit in 2001 in the city of New London. That's not an easy thing to do. That's not a pleasant thing to do. I can think of, and I know you can think of, many other things a fourteen year old girl would [want] to do on any given day. So, that's the starting point.

"Add to that the fact that her testimony has what we refer to as hallmarks of credibility, which is just a fancy way of saying that within that testimony, there are many signs of truthfulness, many signs of reliability. And I'm going over some of those with you, and I'd ask you to consider them when you think about [the victim's] testimony. The first thing I'd ask you to think about is consistency. [The victim] has been consistent from the very first day she returned to her mother's home and indicated that her father had sexually assaulted her. She has always said that the sexual assault consisted of a brief moment where he put his mouth on her vagina and a second encounter, moments later, where he inserted his penis into her vagina, very minimally, she says, very minimally, but that would be enough under our statute.

"She has been consistent in her interviews then with Florence Mackey.⁴ She has been consistent in her interview with Janet Murphy.⁵ She has been consistent here in court. She said [that] those are the things that happened. She didn't add to them. She didn't include one type of sexual contact in one interview and then have another type in a different interview. She was consistent and clear on the [witness] stand. She never pretended to remember things she didn't remember, and so I'd ask you to consider that consistency when you think about her testimony. And I'm going to really ask you to think about it when you compare it to the defendant's testimony...."

The prosecutor later argued as follows: "Another important thing, I think, when you think about her testimony, is that there was no exaggeration. [The victim] didn't pretend to remember things if she didn't. She didn't claim to know what ejaculation was. She just said she didn't feel any wetness on her in the incident. She didn't say he had penetrated her for a long amount of time very deeply. She just described what happened to her. She didn't try to fill in the blanks." The prosecutor also argued: "[The victim] is an accurate reporter. She is a reporter without any motivation. She is a reporter without an agenda, and she's a reporter with absolutely nothing to gain here at all."

The defendant argues that the prosecutor expressed her personal opinion concerning the victim's credibility. The law circumscribes the prosecutor's leeway in commenting on the credibility of witnesses. "It is well settled that [a] prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses.... Such expressions of personal opinion are a form of unsworn and unchecked testimony.... These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor.... The jury is aware that he has prepared and presented the case and consequently, may have access to matters not in evidence ... which the jury may infer to have precipitated the personal opinions.... The prosecutor may, however, argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses." (Emphasis in original; internal quotation marks omitted.) State v. Morgan, 70 Conn.App. 255, 287, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

Having reviewed the challenged remarks, we conclude that they do not constitute prosecutorial misconduct. It was not...