State v. Williams

81 Conn. App. 1

838 A.2d 214

STATE OF CONNECTICUT v. KEVIN B. WILLIAMS

(AC 22676).

Appellate Court of Connecticut

Argued May 7, 2003.

Officially released January 13, 2004.

Flynn, Mihalakos and McDonald, Js.

Moira L. Buckley, deputy assistant public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Kevin Doyle, assistant state's attorney, for the appellee (state).

Opinion

MIHALAKOS, J.

The defendant, Kevin B. Williams, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1)(A) and risk of injury to a child in violation of General Statutes § 53-21. The issues on appeal are whether (1) remarks made by the prosecutor in his closing and rebuttal arguments to the jury amounted to misconduct that deprived the defendant of a fair trial, (2) the court's instructions to the jury to ignore certain questions that defense counsel had asked the victim deprived the defendant of his rights to confrontation, to present a defense and to have a jury decide his fate, and (3) the court committed harmful error by precluding the defendant from cross-examining the victim's mother concerning the effect of the victim's parents' divorce. We conclude that the defendant's claims are without merit. We therefore affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On or about July 12, 1999, in the early evening, the defendant, a forty-four year old man, baby-sat for the female victim, who was an eight year old child,¹ and another child. During that time, the children and the defendant played hide-and-seek. Both children hid and were discovered by the defendant in a bedroom. After being found, the victim's friend ran down a flight of stairs, and the defendant entered the bedroom and shut the door. The defendant picked up the victim and put her on the bed. She asked the defendant to get off of her and tried to get off of the bed. The defendant touched the victim's chest, over her clothing. She testified that she heard the defendant make muttering noises she had never heard and that he shivered when he touched her chest. When the defendant heard the victim's mother return, he got off of her and went downstairs. A friend of the victim's mother saw the defendant and the victim walk down the stairs. Although the victim informed her mother's friend about the incident, her mother's friend did not believe her initially. Later that evening, the victim told her mother that the defendant had touched her inappropriately, and her mother took her to the police station. The police arrested the defendant and seized the trousers he wore on July 12, 1999. The trousers tested negative for any bodily fluids.

The defendant's trial began on October 2, 2001, and the jury returned a verdict of guilty on the two counts on October 5, 2001. On December 7, 2001, the court sentenced the defendant to a term of two and one-half years imprisonment on the count of sexual assault in the third degree and three and one-half years imprisonment on the count of risk of injury to a child, to be served consecutively, followed by six and one-half years of special parole and an obligation to register as a sex offender. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that certain statements made by the prosecutor in his closing and rebuttal arguments to the jury deprived the defendant of a fair trial. The defendant argues that several remarks were improper because the prosecutor (1) vouched for the victim's credibility and attacked the defendant's credibility, (2) appealed to the jurors' emotions, (3) referred to facts not in evidence and (4) belittled defense counsel and her role as defense counsel. We disagree.

The defendant did not preserve the issue for appeal and therefore seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).² We review the claim because the record is adequate to do so, and an allegation of prosecutorial misconduct in violation of the defendant's fundamental right to a fair trial is a claim of constitutional magnitude. See State v. L'Minggio, 71 Conn. App. 656, 675, 803 A.2d 408, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). We conclude, however, that the defendant's claim fails under Golding's third prong because the challenged remarks did not deprive him of a fair trial.

Our standard of review concerning claims of prosecutorial misconduct is well settled. "Our Supreme Court has previously acknowledged that prosecutorial misconduct can occur in the course of closing argument.. . . To 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 misconduct. . . .

"Our first step in analyzing the defendant's claim that the prosecutor committed misconduct during closing argument is to determine whether the challenged comments were improper. . . . We previously have observed that because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. In addressing the jury, counsel 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. . . .

"Nevertheless, while a prosecutor may argue the state's case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom." (Citations omitted; internal quotation marks omitted.) State v. Young, 76 Conn. App. 392, 403-404, 819 A.2d 884, cert. denied, 264 Conn. 912, 826 A.2d 1157 (2003).

"We do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. . . . It is in that context that the burden falls on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted." (Internal quotation marks omitted.) State v. Rogelstad, 73 Conn. App. 17, 27, 806 A.2d 1089 (2002). "In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused 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." (Internal quotation marks omitted.) State v. Sostre, 73 Conn. App. 848, 852-53, 809 A.2d 1141 (2002), cert. denied, 262 Conn. 942, 815 A.2d 673 (2003).

"We have long held, however, that Golding review of such a claim will not result in reversal where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . because in such a case the claimed misconduct is insufficient to infect the fundamental fairness of the trial itself." (Internal quotation marks omitted.) Id., 853. Again, it is important to note that the defendant made no objections and failed to ask for any curative instruction with regard to his prosecutorial misconduct claims. "The defendant, therefore, presumably did not regard those remarks . . . as seriously prejudicial at trial." (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 356, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999).

A

The defendant first asserts that the prosecutor vouched for the credibility of the victim, and asked the jury to speculate as to the truthfulness of the victim, her testimony and her lack of a motive to lie. The defendant challenges, among other remarks, the following statements made by the prosecutor: "You have to . . . weigh the evidence, look at the way people testified, size up their testimony. . . . You use your good common sense to . . . decide if the victim had a reason to be untruthful. If she was confused, why would she come in court and testify to the things that she did?. . . Who are you going to believe, ladies and gentleman?. . . What was the motive for the victim to say that this happened when it didn't? What was the enjoyment that she got out of being involved in this process? What did she have to gain by saying this happened?. . . You have to decide if she's credible, if she's believable." The prosecutor also stated: "Use your good common sense. The shivering when it wasn't cold out, the strange noises. How did an eight year old know about that?" and, "The victim was truthful. She was direct. She answered difficult questions and never backed off—never backed off what the defendant did to her." We disagree with the defendant's claim that those remarks deprived him of a fair trial.

"In deciding cases . . . 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." (Emphasis added; internal quotation marks omitted.) State v. Ceballos, 266...