State v. Warholic

897 A.2d 569

278 Conn. 354

STATE of Connecticut v. Charles WARHOLIC.

No. 17289.

Supreme Court of Connecticut.

Argued November 30, 2005.

Decided May 30, 2006.

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Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, senior assistant state's attorney, for the appellant (state).

Richard Emanuel, New Haven, for the appellee (defendant).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

Upon our grant of certification, the state appeals from the Appellate Court's judgment reversing the conviction of the defendant, Charles Warholic, 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. State v. Warholic, 84 Conn.App. 767, 854 A.2d 1145 (2004). The state claims that the Appellate Court improperly reversed the defendant's convictions due to prosecutorial misconduct. We agree, and, accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following facts, which reasonably could have been found by the jury. "E¹ was born in 1986. In 1990, when E was four years old, his parents were divorced and his father moved out of their house. After the divorce, E lived with his mother, his two older sisters, L and B, and the defendant, who was his mother's boyfriend. In February, 1992, when E was five years old, his family and the defendant moved to a rented house in Watertown.

"According to E, the defendant began sexually assaulting him approximately one year after they moved to the rented house. E had a clear memory of the first incident of abuse. According to E, when his mother was out of the house, the defendant told him to come upstairs to a bathroom. Once upstairs, the defendant closed the bathroom door and told E to take his clothes off and to get into the shower. The defendant then stood naked in the shower with E and had E kneel beneath the shower and face him. At the behest of the defendant, E put his mouth on the defendant's penis and moved his head back and forth. That lasted two minutes until the defendant ejaculated. E then put his hands on and rubbed the defendant's penis. The entire incident lasted five minutes. E was instructed never to tell anyone about the incident.

"According to E, incidents similar to the first one occurred on a regular basis, approximately fifty to sixty times, until March or April, 1994. E testified that whenever he saw his mother pick up her blue notebook, he would go to his bedroom because he knew the defendant was going to sexually assault him. E's mother took her book with her when she left the house as part of her routine.

"In March, 1999, E moved in with his father and his father's new wife, C, and her three children. C observed that during that time period, E was a quiet child who often misbehaved. In February, 2000, after E misbehaved, C told E that he would have to return to live with his mother. E begged her not to return him to his mother and eventually told her about the abuse by the defendant. E also told his father about the abuse. E and his father then gave statements to the police. The defendant was later arrested and charged accordingly.

"Howard Krieger, a psychologist and an expert in child sexual assault cases, testified at the trial. Krieger, who did not treat E, described the general symptoms of sexually abused children, including the delayed reporting of such abuse. The defendant and the victim's mother testified on the defendant's behalf. According to the victim's mother, E and the defendant had a normal relationship, and she never witnessed the defendant acting in an inappropriate manner toward E. She denied ever bringing a blue notebook with her to meetings and noted that she rarely left E home alone with the defendant. The defendant testified that while E was living with him, he baby-sat the children infrequently, and he denied E's claims of sexual assault.

"The state presented two rebuttal witnesses, J, a friend of the victim's mother, and E's sister, B, who both resided in the rented house. J testified that she observed the defendant and E on numerous occasions, and that E appeared withdrawn and afraid of the defendant. B testified that her mother was out of the house on a regular basis and would take her notebook with her to certain meetings that she attended." State v. Warholic, supra, 84 Conn.App. at 769-71, 854 A.2d 1145. Additional facts will be set forth as necessary.

The jury found the defendant guilty on both counts. The trial court rendered judgment in accordance with the jury's verdict. The defendant subsequently appealed from the judgment of conviction to the Appellate Court, claiming that he was deprived of his due process right to a fair trial as a result of prosecutorial misconduct. The Appellate Court determined that the prosecutor improperly: (1) expressed his personal opinion during closing and rebuttal argument as to the credibility of E, the defendant, and E's mother, who was called as a witness for the defendant; id., at 774-77, 854 A.2d 1145; (2) expressed his personal opinion of the defendant's guilt; id., at 776, 854 A.2d 1145; (3) appealed to the emotions of the jury during closing argument; id., at 777-78, 854 A.2d 1145; (4) during rebuttal argument made gratuitous remarks to elicit sympathy for E and appealed to the male jurors to identify with E; id., at 779-80, 854 A.2d 1145; (5) during cross-examination asked the defendant to comment on the veracity of E's testimony; id., at 780-81, 854 A.2d 1145; and (6) during cross-examination attacked the character of the defendant and E's mother. Id., at 781-83, 854 A.2d 1145. The Appellate Court concluded that these improprieties so infected the trial that they violated the defendant's due process right to a fair trial.² Id., at 783-86, 854 A.2d 1145. Accordingly, the Appellate Court reversed the judgment of the trial court and ordered a new trial. Id., at 786, 854 A.2d 1145. Thereafter, we granted the state's petition for certification to appeal, limited to the following question: "Did the Appellate Court properly reverse the judgment of conviction because of prosecutorial misconduct?" State v. Warholic, 271 Conn. 935, 861 A.2d 512 (2004). This appeal followed.

I PROSECUTORIAL MISCONDUCT

The state argues that the Appellate Court incorrectly determined that many of the prosecutor's comments during final arguments and questions during cross-examination were improper. Further, the state contends that the Appellate Court improperly determined that the misconduct deprived the defendant of a fair trial because it overstated the frequency and severity of the misconduct, and failed to give adequate weight to the trial court's curative instructions, the defendant's failure to object to most of the misconduct, and the fact that the jury asked to rehear all of E's testimony.

At the outset, we note that, although the defendant preserved a number of his claims of misconduct by way of objections or motions for mistrial, he did not preserve all of the claims of misconduct that he has raised on appeal. Nonetheless, we have recently stated that a defendant who fails to preserve claims of prosecutorial misconduct need not "seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-prong Golding test." State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). The reason for this is that the defendant in a claim of prosecutorial misconduct must establish that the "prosecutorial misconduct was so serious as to amount to a denial of due process . . . ." (Internal quotation marks omitted.) Id., at 573, 849 A.2d 626. In evaluating whether the misconduct rose to this level, we consider the factors enumerated by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). State v. Stevenson, supra, at 572-73, 849 A.2d 626. These factors include 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. Id., at 573, 849 A.2d 626. The consideration of the fairness of the entire trial through the Williams factors duplicates, and, thus makes superfluous, a separate application of the Golding test. Id., at 573-74, 849 A.2d 626.

"This does not mean, however, that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor's improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant's right to a fair trial. . . . [Thus], the fact that defense counsel did not object to one or more incidents of misconduct must be considered in determining whether and to what extent the misconduct contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted." (Internal quotation marks omitted.) State v. Ancona, 270 Conn. 568, 593, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S.Ct. 921, 160 L.Ed.2d 780 (2005).

"[I]n analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether...