State v. Stephanie U. ( 2021 )

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STATE OF CONNECTICUT v. STEPHANIE U.*
(AC 41793)
Bright, C. J., and Prescott and Elgo, Js.
Syllabus
Convicted of various crimes in connection with her actions while attempting
to pick up her child from day care while allegedly under the influence
of intoxicating liquor or drugs, the defendant appealed to this court.
The defendant testified on her own behalf at trial. During cross-examina-
tion, the prosecutor asked the defendant whether she had an interest
in the outcome of the trial and implied that the defendant had the
opportunity to tailor her testimony by taking the stand after observing
the testimony of all of the other witnesses. Additionally, during the
rebuttal portion of her closing argument, the prosecutor argued that the
defendant was the only witness who had the opportunity to hear the
testimony of the other witnesses prior to giving her own testimony, that
she had a vested interest in the outcome of the case, and that the jurors
could consider that interest in their decision-making process. On appeal,
the defendant claimed, inter alia, that the prosecutor’s questioning and
argument constituted generic tailoring, which violated her right to con-
frontation and her right to testify on her own behalf under both the
state and federal constitutions. Held:
1. The defendant failed to prove her unpreserved claim that the prosecutor
violated her state constitutional rights to confront witnesses against her
and to testify on her own behalf: although the state’s tailoring questions
and argument were generic because they were not tied to evidence that
specifically gave rise to an inference of tailoring and instead focused
on the defendant’s presence in the courtroom, her ability to observe
the proceedings, and her interest in the outcome of the trial, the defen-
dant failed to prove that the state constitution offered greater protection
than the federal constitution and, accordingly, failed to establish a consti-
tutional violation under State v. Geisler (222 Conn. 672), as the language
of article first, § 8, of the Connecticut constitution was virtually identical
to that of the sixth amendment to the federal constitution, Connecticut’s
early recognition of a defendant’s right to testify provided no insight as
to whether the state historically viewed generic tailoring as improper,
most of the cases that the defendant claimed were persuasive precedent
from other states relied on the supervisory authority of the courts and
on public policy to prohibit generic tailoring arguments or questions
rather than on their state constitutions, the United States Supreme Court
in Portuondo v. Agard (529 U.S. 61) held that generic tailoring arguments
did not violate the federal constitution, Connecticut precedent after
Portuondo did not demonstrate that the state courts considered generic
tailoring arguments to raise state constitutional issues, and the defen-
dant’s argument that public policy considerations required a conclusion
that generic tailoring arguments violated the state constitution was not
compelling.
2. The prosecutor did not deny the defendant her due process of law under
either the federal or state constitutions: the defendant’s claim was unpre-
served and it failed under the third prong of State v. Golding (213 Conn.
233); moreover, our Supreme Court in State v. Medrano (308 Conn.
604) held that a trial court’s instruction that a jury could consider the
defendant’s interest in the outcome of the case did not implicate the
defendant’s right to due process, and the defendant in this case failed
to demonstrate that a prosecutor’s similar argument could have more
of an impact on her due process rights than a court’s jury instruction.
3. The prosecutor did not deprive the defendant of a fair trial when she
argued that the defendant had tailored her testimony and that she had
a motive to lie: the defendant failed to establish a claim of prosecutorial
impropriety because she failed to prove that the prosecutor’s argument
and questions infringed on her constitutional rights.
4. This court declined to employ its supervisory authority over the adminis-
tration of justice to expand the Supreme Court’s decision in State v.
Medrano (308 Conn. 604) to prohibit a prosecutor from making argu-
ments about the defendant’s interest in the outcome of his or her criminal
trial, the defendant having failed to persuade this court that such argu-
ment merits the exercise of that authority.
5. Although the defendant was not entitled to a new trial because the prosecu-
tor’s generic tailoring questions and comments did not affect the fairness
of her trial, this court exercised its supervisory authority over the admin-
istration of justice to prohibit prosecutors from employing generic tai-
loring arguments in future criminal cases: this court determined that
generic tailoring arguments should be prohibited because they were
likely to implicate the perceived fairness of the judicial system and
could give rise to a danger of juror misunderstanding; accordingly, this
court held that, prior to asking tailoring questions or before making
such comments in closing arguments in the future, a prosecutor must
inform the trial court and the defendant of her intention to do so and,
if the defendant objects, the trial court must determine that the prosecu-
tor’s questions or argument are specific before allowing the state to pro-
ceed.
6. The defendant could not prevail on her claim that her conviction of
attempt to commit risk of injury to a child should be vacated because
the crime was cognizable: our Supreme Court determined in State v.
Sorabella (277 Conn. 155) that attempt to commit risk of injury to a
child was a cognizable offense and this court was bound by that decision.
Argued January 5—officially released August 24, 2021
Procedural History
Substitute information charging the defendant with
the crimes of operating a motor vehicle while under
the influence of intoxicating liquor or drugs, operating
a motor vehicle while her license was under suspension
and attempt to commit risk of injury to a child, brought
to the Superior Court in the judicial district of Tolland,
geographical area number nineteen, and tried to the
jury before Seeley, J.; verdict and judgment of guilty,
from which the defendant appealed to this court.
Affirmed.
Laila M. G. Haswell, senior assistant public defender,
for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with whom
were Matthew C. Gedansky, state’s attorney, and Jaclyn
Dulude, assistant state’s attorney, for the appellee
(state).
Opinion
BRIGHT, C. J. The defendant, Stephanie U., appeals
from the judgment of conviction of operating a motor
vehicle while under the influence of intoxicating liquor
or drugs in violation of General Statutes § 14-227a (a)
(1), operating a motor vehicle while her operator’s
license was under suspension in violation of General
Statutes § 14-215 (a), and attempt to commit risk of
injury to a child in violation of General Statutes §§ 53-
21 (a) (1) and 53a-49 (a) (2). On appeal, the defendant
claims that (1) the prosecutor violated her state consti-
tutional rights to confront witnesses against her and to
testify on her own behalf by improperly attacking her
credibility during cross-examination and in her closing
rebuttal argument by suggesting that she had tailored
her testimony to conform to the evidence she had over-
heard during her trial, (2) the prosecutor denied her
due process of law under both the federal and state
constitutions when, during cross-examination, the pros-
ecutor asked the defendant whether she had an interest
in the outcome of the trial, and when, during rebuttal
argument, the prosecutor told the jury that it could
consider the defendant’s vested interest in the outcome
of the trial, (3) prosecutorial impropriety deprived her
of a fair trial when the prosecutor argued that she had
tailored her testimony and that she had a motive to lie,
(4) this court, in the alternative, should order a new trial
after we employ our supervisory authority to prohibit
questions and arguments that amount to generic tai-
loring and/or telling or implying to the jury that it can or
should discredit the defendant’s trial testimony because
she has an ‘‘interest in the outcome’’ of her trial, and
(5) her conviction of attempt to commit risk of injury to
a child should be vacated because it is not a cognizable
crime. We reject the defendant’s claims, although we
agree with her request to exercise our supervisory
authority over the administration of justice on the issue
of generic tailoring. Nevertheless, because we conclude
that the prospective rules we articulate regarding
generic tailoring would not have changed the outcome
of the defendant’s trial, we affirm the judgment of the
trial court.
The following facts, as reasonably could have been
found by the jury on the basis of the evidence presented
at trial, and the relevant procedural history, inform our
review of the defendant’s claims. On October 30, 2015,
at approximately 5 p.m., the defendant arrived to pick
up her one year old child at a Vernon day care center.
Jessica Woodruff also was there to pick up her own
child, and she witnessed the defendant stumbling out
of a vehicle, having difficulty walking into the day care,
repeatedly stumbling, having difficulty ‘‘hold[ing] her-
self up,’’ and falling backward. Woodruff believed that
the defendant was intoxicated. Once inside, several peo-
ple, including Woodruff; the assistant director of the
day care, Kathleen Wheeler; and a teacher at the day
care, Elyse DeGemmis, observed the defendant slur,
mumble, and grab onto various objects in an effort
to support herself. Wheeler and DeGemmis were so
concerned that they called 911.
Detective John Divenere of the Vernon Police Depart-
ment was dispatched to the day care on a report of an
intoxicated woman attempting to pick up her child. On
his arrival, someone pointed out the defendant. When
Divenere asked the defendant for identification, she
handed him her state identification card and, when
asked about her driver’s license, she told him that it
had been suspended. Divenere observed that the defen-
dant’s eyes were glassy, her speech was slow and
slurred, and she was having difficulty maintaining her
balance. The defendant denied to Divenere that she had
taken drugs or alcohol, or that she had medical issues,
disabilities, or diabetes. Divenere administered two
‘‘preliminary’’ tests that are not part of the field sobriety
tests, namely, the ‘‘alphabet’’ test and the ‘‘counting
backwards’’ test. At his request, the defendant per-
formed each test several times. The defendant slurred
her speech and skipped letters and numbers during
each of the tests. The defendant appeared intoxicated to
Divenere, who then administered several field sobriety
tests, all of which the defendant failed. Officer David
Provencher, who also had arrived at the day care,
recorded on his body camera the defendant performing
the field sobriety tests. Divenere arrested the defendant
and took her to the police station.1
At approximately 6 p.m., while at the police station,
Divenere advised the defendant of her rights. The defen-
dant again denied that she had any medical issues or
that she had consumed alcohol. She did state that she
was prescribed Xanax but that she had not taken it that
day. Divenere observed that the defendant did not smell
of alcohol or marijuana, her eyes were not bloodshot
or red, and her pupils were not dilated or constricted.
Divenere did not find any drugs, drug paraphernalia, or
alcohol in the defendant’s vehicle or purse. Divenere
administered a Breathalyzer test, which resulted in a
reading of zero. He then asked the defendant to take
a urine test, which the defendant initially agreed to take
but then declined.2
On the basis of this evidence, the jury found the defen-
dant guilty of illegal operation of a motor vehicle while
under the influence of intoxicating alcohol or drugs,
illegal operation of a motor vehicle while her license
was under suspension, and attempt to commit risk of
injury to a child. The court accepted the jury’s verdict
and sentenced the defendant to a total effective term
of five years of imprisonment, execution suspended
after eighteen months, followed by five years of proba-
tion. This appeal followed. Additional facts will be set
forth as necessary.
I
The defendant claims that the prosecutor violated
her state constitutional rights, under article first, § 8,
to confront witnesses against her and to testify on her
own behalf by improperly attacking her credibility when
engaging in a generic tailoring argument, by suggesting
during cross-examination and during closing rebuttal
argument that she had tailored her testimony to con-
form to the evidence that she heard during her criminal
trial. The defendant did not preserve her claim and asks
for review pursuant to State v. Golding, 213 Conn. 233,
239–240, 567 A.2d 823 (1989), as modified by In re
Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).3
We conclude that the defendant’s claim is reviewable
but that it fails under the third prong of Golding. In
particular, we conclude that the defendant has failed
to prove that the state constitution offers greater protec-
tion than the federal constitution with respect to con-
frontation rights, and, therefore, she cannot establish
that a state constitutional violation exists.
The following additional facts are necessary to our
consideration of the defendant’s claim. During trial, the
defendant testified on her own behalf. She explained to
the jury that she had experienced mental health issues,
including mood disorders, anxiety, and bipolar disor-
der, since she was a child, and that she takes Xanax
as needed. She also testified that the day before this
incident, she had gotten into a verbal altercation with
a coworker and quit her job. The defendant further
explained that, on the day of the incident, she met with
her manager and someone from human resources to
ask for her job back, but she was not successful. She
testified that, later in the day, when it was time to pick
up her child from day care, her grandmother, who had
been providing transportation, was unavailable; so,
despite knowing that her license was under suspension,
she drove to the day care to pick up her child. She
denied that she had been disorientated when she went
to the day care, but she testified that the body camera
video convinced her that she had undergone a mental
health episode while at the day care center. She
explained that the video showed her experiencing tics
and pulling her hair, which signaled a mental health
episode.
During cross-examination, the prosecutor asked the
defendant:
‘‘Q. And you’ve had an opportunity to sit in court and
listen to all of the witnesses testify in this case; correct?
‘‘A. Yes.
‘‘Q. So you’ve been able to listen to their testimony
and figure out what you’re going to say today; correct?
‘‘A. What I’m going to say today?
‘‘Q. Yeah; during your testimony.
‘‘A. No.
‘‘Q. You haven’t listened to their testimony?
‘‘A. Yes. I’ve listened to what they’ve had to say.
‘‘Q. Okay. And you have a lot riding on this case,
don’t you?
‘‘A. Today?
‘‘Q. Sure.
‘‘A. Well, yeah. I have my son, my apartment. I have
a life. My son is everything to me.’’
The next day, during the rebuttal portion of her clos-
ing argument, the prosecutor argued in relevant part:
‘‘Also consider the fact that the only witness to have
sat in on the testimony of all the other witnesses in this
case is the defendant. None of the other witnesses got
to hear the others’ testimony. The defendant knew what
everyone said and had that knowledge when she testi-
fied. She has a vested interest in the outcome of this
case. And that can also be taken into account when
you’re deliberating this case.
b‘‘Does it make sense, with regard to the day care
workers,
that three independent individuals who have no interest
in this case would tell you similar stories and describe
similar behaviors of the defendant; that this would be
untruthful or lying testimony, as indicated by defense
counsel?
‘‘The defendant testified that she did not act in any
way as described by the day care workers. Totally
unequivocal; I did not act that way at all. These are
individuals out in the community, going about their day-
to-day lives, going to work, picking up children. Think
about how those witnesses testified, as opposed to the
defendant.’’
On appeal, the defendant argues that, ‘‘[d]uring cross-
examination, the state asked the defendant point blank
whether she had listened to all of the witnesses who
had testified beforehand and ‘figured out’ what she was
going to say. Furthermore, in its rebuttal, the state
argued that the defendant was the only witness who
heard all of the other testimony, and she tailored her
evidence accordingly. These generic tailoring argu-
ments violated the defendant’s right of confrontation
and right to testify because they turned the defendant’s
unassailable rights to be present during all the testi-
mony and to testify on her own behalf into a weapon
used against her. This court must hold, under the Con-
necticut constitution article [first], § 8 . . . that the
state may not raise generic tailoring claims at any point
in the trial.’’
A
We first consider whether the questions and remarks
of the prosecutor amounted to generic tailoring.
‘‘A prosecutor makes a tailoring argument when he
or she attacks the credibility of a testifying defendant
by asking the jury to infer that the defendant has fabri-
cated his testimony to conform to the testimony of
previous witnesses. See Portuondo v. Agard, 529 U.S.
61, 73, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000). The term
most frequently is used to refer to a prosecutor’s direct
comment during closing argument on the defendant’s
opportunity to tailor his testimony, although a prosecu-
tor sometimes also will use cross-examination to con-
vey a discrediting tailoring message to the jury. There
are two types of tailoring arguments: generic and spe-
cific. The former occurs when the prosecutor argues
the inference solely on the basis of the defendant’s
presence at trial and his accompanying opportunity to
fabricate or tailor his testimony. State v. Alexander, 254
Conn. 290, 300, 755 A.2d 868 (2000); see also State v.
Daniels, 182 N.J. 80, 98, 861 A.2d 808 (2004) ([g]eneric
accusations occur when the prosecutor, despite no spe-
cific evidentiary basis that [the] defendant has tailored
his testimony, nonetheless attacks the defendant’s cred-
ibility by drawing the jury’s attention to the defendant’s
presence during trial and his concomitant opportunity
to tailor his testimony). A specific tailoring argument,
by contrast, occurs when a prosecutor makes express
reference to the evidence, from which the jury might
reasonably infer that the substance of the defendant’s
testimony was fabricated to conform to the state’s case
as presented at trial. See State v. Daniels, supra, 98([a]llegations of tailoring are specific when there is
evidence in the record, which the prosecutor can iden-
tify, that supports an inference of tailoring).’’ (Footnote
omitted; internal quotation marks omitted.) State v.
Weatherspoon, 332 Conn. 531, 543–44, 212 A.3d 208(2019).
In Weatherspoon, our Supreme Court concluded that
the prosecutor’s tailoring argument was specific
because it ‘‘contained two different but related evi-
dence-based assertions: first, the discrepancy between
the defendant’s pretrial statement to [the police] and
his in-court trial testimony supports the inference that
his in-court testimony is false; and second, the defen-
dant’s false testimony about his memory allowed him
to conform his recitation of events to that of [another
witness’] trial testimony, thereby supporting a reason-
able inference of tailoring.’’ Id., 549–50. By contrast,
‘‘[g]eneric tailoring arguments occur when the prosecu-
tion attacks the defendant’s credibility by simply draw-
ing the jury’s attention to the defendant’s presence at
trial and his resultant opportunity to tailor his testi-
mony.’’ (Internal quotation marks omitted.) State v.
Papantoniou, 185 Conn. App. 93, 99 n.11, 196 A.3d 839,
cert. denied, 330 Conn. 948, 196 A.3d 326 (2018).
Our Supreme Court in Weatherspoon was asked to
decide whether generic tailoring arguments, which do
not violate the federal constitution; see Portuondo v.
Agard, supra, 529 U.S. 70–73; violate a defendant’s right
to confrontation under article first, § 8, of the Connecti-
cut constitution. State v. Weatherspoon, supra, 332
Conn. 543. The court did not reach the question because
it concluded that the tailoring argument made by the
prosecutor in that case was a specific tailoring argu-
ment and the defendant had not claimed on appeal that
specific tailoring arguments violate the state constitu-
tion. Id., 549–50.
In the present case, the defendant argues that the
prosecutor’s questions during cross-examination of the
defendant and her remarks during her rebuttal closing
argument were generic tailoring, and she asks that we
address the state constitutional question not reached
by our Supreme Court in Weatherspoon. The state
argues that we should not reach the constitutional ques-
tion because, as in Weatherspoon, the state’s tailoring
argument in the present case was specific and not
generic. We agree with the defendant that the state’s
tailoring argument was generic.
During cross-examination, the prosecutor asked the
defendant about her ability to listen to all of the argu-
ments and figure out what she was going to say before
she testified. Such questioning focused the jury’s atten-
tion, not on any specific evidence that the defendant
tailored her testimony but, instead, on the defendant’s
mere presence in the courtroom, her opportunity to
observe the proceedings, her ability to tailor her testi-
mony on the basis of her presence in the courtroom and
her observations, and the fact that she had a vested
interested in the outcome of her criminal trial.
Then, during the rebuttal portion of her closing argu-
ment, the prosecutor similarly called to the jury’s atten-
tion the fact that the defendant was the only testifying
witness to have heard all of the trial testimony, and
that she knew the substance of each witness’ testimony
before she, herself, testified. The prosecutor then again
tied that argument to the fact that the defendant had
a vested interest in the proceedings.
The state argues that the defendant is viewing the
tailoring questions and remarks of the prosecutor out of
context. According to the state, the tailoring comments
were anchored sufficiently to evidence presented at
trial to make them specific and not generic. With respect
to the tailoring questions asked during cross-examina-
tion, the state argues that those questions followed the
prosecutor’s questions about the defendant’s mental
health, to which the defendant attributed her behavior
on the day of her arrest. The state argues that the prose-
cutor’s questions were intended to show that ‘‘the defen-
dant tailored her testimony to the state’s evidence of
intoxication when she claimed, for the first time at trial,
that her long-standing psychiatric problems mimicked
drug induced intoxication.’’ With respect to the com-
ments made during the prosecutor’s rebuttal closing
argument, the state argues that, immediately following
the prosecutor’s ‘‘generic remarks,’’ she compared the
defendant’s testimony to the consistency of the evi-
dence from the day care workers, the police and the
video recordings of the defendant’s behavior. We are
not persuaded that the record supports either of the
state’s arguments.
First, the prosecutor’s questions that preceded her
generic tailoring questions were unrelated to the defen-
dant’s testimony that her psychiatric problems caused
her behavior that led to her arrest. Instead, the prosecu-
tor’s questions focused on the defendant’s performance
of the field sobriety tests, whether the defendant
refused to provide a urine sample because she knew
that it would show the presence of Xanax in her system,
her long history of taking Xanax, and whether she took
it on the day she was arrested to cope with the stressful
situation at work. The fact that the defendant was pres-
ent in court and heard the testimony of others was
wholly unrelated to the inferences the state was asking
the jury to draw from the defendant’s answers to these
questions. Because there is no connection between the
tailoring questions asked by the state and the questions
that preceded them, the tailoring questions were
generic and not specific.
Second, the prosecutor’s tailoring comments during
her rebuttal closing argument were similarly generic
because the argument that followed, on which the state
relies, was not based on evidence that had any correla-
tion to the defendant’s presence in court. In particular,
the prosecutor argued that the testimony of other wit-
nesses regarding the defendant’s behavior was more
believable than the defendant’s because the testimony
of those witnesses was consistent with each other and
those witnesses had no motivation to lie. In making
this argument, the prosecutor made specific reference
to the defendant’s testimony that she did not act as
those witnesses described. Thus, unlike in Weath-
erspoon, the prosecutor in the present case did not
argue that defendant tailored her testimony to be con-
sistent with the testimony of the state’s witnesses. To
the contrary, she argued that the defendant’s testimony
was flatly contrary to the testimony of more believable
witnesses. Because the prosecutor’s tailoring comments
were not tied to specific evidence that gave rise to an
inference of tailoring, the tailoring comments were
generic, not specific.
B
Having concluded that the prosecutor’s tailoring
arguments were generic and not specific, we consider
the question not reached in Weatherspoon—whether
the prosecutor’s generic tailoring questions and argu-
ment violated the defendant’s state constitutional rights
to confront witnesses and to testify on her own behalf
in violation of article first, § 8.4 The defendant argues
that under the factors set forth in State v. Geisler, 222
Conn. 672, 684–85, 610 A.2d 1225 (1992), she has estab-
lished a state constitutional violation. We are not per-
suaded.
‘‘In . . . Geisler . . . we identified six nonexclusive
tools of analysis to be considered, to the extent applica-
ble, whenever we are called on as a matter of first
impression to define the scope and parameters of the
state constitution: (1) persuasive relevant federal prece-
dents; (2) historical insights into the intent of our consti-
tutional forebears; (3) the operative constitutional text;
(4) related Connecticut precedents; (5) persuasive prec-
edents of other states; and (6) contemporary under-
standings of applicable economic and sociological
norms, or, as otherwise described, relevant public poli-
cies. . . . These factors, [commonly referred to as the
Geisler factors and] which we consider in turn, inform
our application of the established state constitutional
standards . . . to the defendant’s claims in the present
case.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. McCleese, 333 Conn. 378, 387–88, 215 A.3d
1154 (2019). Because ‘‘[i]t is not critical to a proper
Geisler analysis that we discuss the various factors in
any particular order or even that we address each fac-
tor’’; id., 388; we review the Geisler factors in the order
briefed by the defendant.
1
The first Geisler factor the defendant discusses is
the operative constitutional text. See id., 387. Article
first, § 8, of the Connecticut constitution provides in
relevant part: ‘‘In all criminal prosecutions, the accused
shall have a right to be heard by himself and by counsel
. . . [and] to be confronted by the witnesses against
him . . . . No person shall be compelled to give evi-
dence against himself, nor be deprived of life, liberty
or property without due process of law . . . .’’ The
defendant concedes that this Geisler factor favors the
state. We agree.
As the defendant acknowledges, the language of arti-
cle first, § 8, regarding the right to confrontation is
virtually identical to that in the sixth amendment to the
federal constitution. Compare U.S. Const., amend. VI
(‘‘[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses
against him’’), with article first, § 8, of the Connecticut
constitution (‘‘[i]n all criminal prosecutions, the
accused shall have a right . . . to be confronted by
the witnesses against him’’). Because the United States
Supreme Court has concluded that generic tailoring
arguments do not violate federal constitutional rights;
State v. Weatherspoon, supra, 332 Conn. 545–46; we
agree with the defendant that this factor favors the state.
2
The next Geisler factor that the defendant discusses
is the historical insights into the intent of our constitu-
tional forebears. See State v. McCleese, supra, 333 Conn.
387. She concedes that the right to confrontation in the
sixth amendment to the United States constitution and
in article first, § 8, are nearly identical. She argues,
however, that Connecticut has a long history of concern
regarding a defendant’s rights under article first, § 8;
see State v. Cassidy, 236 Conn. 112, 122–24, 672 A.2d
899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L.
Ed. 2d 196 (1996), overruled in part by State v. Alexan-
der, 254 Conn. 290, 295–96, 755 A.2d 868 (2000); and
that this court should conclude that generic tailoring
arguments impermissibly burden a defendant’s right to
testify. She contends that this Geisler factor favors the
defendant. We conclude that this factor favors the state.
The defendant cites to historical facts in Connecticut
that demonstrate the importance of the right to testify
on one’s own behalf throughout our history. We readily
acknowledge the historical and continued importance
of such a right. Nevertheless, Connecticut’s early recog-
nition of a defendant’s right to testify provides no insight
into whether generic tailoring was historically viewed
as improper. In fact, the United States Supreme Court
rejected a similar argument in Portuondo v. Agard,
supra, 529 U.S. 65–66.
In Portuondo, the defendant argued that the prosecu-
tor’s generic tailoring argument violated his right to due
process in the same way that a prosecutor violates a
defendant’s due process rights by commenting on a
defendant’s refusal to testify. Id., 64–65. In rejecting the
defendant’s argument, the court stated: ‘‘As an initial
matter, [the defendant’s] claims have no historical foun-
dation, neither in 1791, when the Bill of Rights was
adopted, nor in 1868 when, according to our jurispru-
dence, the [f]ourteenth [a]mendment extended the
strictures of the [f]ifth and [s]ixth [a]mendments to
the [s]tates. The process by which criminal defendants
were brought to justice in 1791 largely obviated the
need for comments of the type the prosecutor made
here. Defendants routinely were asked (and agreed) to
provide a pretrial statement to a justice of the peace
detailing the events in dispute. See Moglen, The Privi-
lege in British North America: The Colonial Period to
the Fifth Amendment, in The Privilege Against Self-
Incrimination 109, 112, 114 (R. Helmholz et al. eds.
1997). If their story at trial—where they typically spoke
and conducted their defense personally, without coun-
sel, see J. Goebel & T. Naughton, Law Enforcement
in Colonial New York: A Study in Criminal Procedure
(1664–1776), p. 574 (1944); A. Scott, Criminal Law in
Colonial Virginia 79 (1930)—differed from their pretrial
statement, the contradiction could be noted. See [L.]
Levy, Origins of the Fifth Amendment and Its Critics,
19 Cardozo L. Rev. 821, 843 (1997). Moreover, what
they said at trial was not considered to be evidence,
since they were disqualified from testifying under oath.
See 2 J. Wigmore, Evidence § 579 (3d. [E]d. 1940).
‘‘The pretrial statement did not begin to fall into dis-
use until the [1830s], see Alschuler, A Peculiar Privilege
in Historical Perspective, in The Privilege Against Self-
Incrimination, supra, [198], and the first [s]tate to make
defendants competent witnesses was Maine, in 1864,
see 2 Wigmore, supra, § 579, [701]. In response to these
developments, some [s]tates attempted to limit a defen-
dant’s opportunity to tailor his sworn testimony by
requiring him to testify prior to his own witnesses. See
3 J. Wigmore, Evidence §§ 1841, 1869 (1904); Ky. Stat.,
ch. 45, § 1646 (1899); Tenn. Code Ann., ch. 4, § 5601
(1896). Although the majority of [s]tates did not impose
such a restriction, there is no evidence to suggest they
also took the affirmative step of forbidding comment
upon the defendant’s opportunity to tailor his testi-
mony.’’ Portuondo v. Agard, supra, 529 U.S. 65–66.
Consistent with this history, in State v. Weatherspoon,
supra, 332 Conn. 545, our Supreme Court explained
that the issue of generic tailoring was not addressed in
Connecticut until 1996: ‘‘Our court first addressed the
constitutionality of tailoring arguments in State v. Cas-
sidy, [supra, 236 Conn. 120–29].’’ (Emphasis added.)
We conclude that this factor favors the state.
3
The next Geisler factor discussed by the defendant
is the persuasive precedents of other states. See State v.
McCleese, supra, 333 Conn. 387. She argues that several
states that have considered generic tailoring since the
United States Supreme Court decided Portuondo barred
its use as violative of their state constitution or public
policy. The defendant, citing, as examples, Martinez v.
People, 244 P.3d 135 (Colo. 2010) (en banc); State v.
Walsh, 125 Hawaii 271, 260 P.3d 350 (2011); Common-
wealth v. Gaudette, 441 Mass. 762, 808 N.E.2d 798(2004), which relied on Commonwealth v. Person, 400
Mass. 136, 508 N.E.2d 88 (1987); State v. Swanson, 707
N.W.2d 645 (Minn. 2006); State v. Daniels, supra, 182
N.J. 80; People v. Pagan, 2 App. Div. 3d 879, 769 N.Y.S.2d
741 (2003); and State v. Wallin, 166 Wn. App. 364, 269
P.3d 1072 (2012), contends that this factor favors the
defendant.
The state responds that the few jurisdictions cited
by the defendant either fail to explain their rationale
or utilize ‘‘conclusory’’ reasoning, and they often ignore
the ‘‘legitimate concerns’’ voiced by the majority in Por-
tuondo. Furthermore, the state argues, ‘‘only one [state],
Hawaii, seems to have [banned generic tailoring] as a
matter of state constitutional law.’’ The state contends,
therefore, that this Geisler factor favors the state. We
conclude that, although several states prohibit generic
tailoring, our review of the cases relied on by the defen-
dant reveals that nearly all of them do so on policy,
rather than state constitutional, grounds. See also K.
Kumor, ‘‘State Criminal Procedure Rights: How Much
Should the U.S. Supreme Court Influence?,’’ 89 Ford-
ham L. Rev. 931, 939 (2020) (‘‘[O]nly five states have
expanded on this federal precedent, and only one has
used its state constitution to do so. The five states are
Colorado, Hawaii, Massachusetts, Minnesota, and New
Jersey, with Hawaii being the only state to rely on its
state constitution. All other states with opinions on this
issue have conformed to the Supreme Court’s holding.’’
(Footnotes omitted.)).
A review of the cases relied on by the defendant
confirms the state’s argument. In Commonwealth v.
Person, supra, 400 Mass. 139, a case decided before
Portuondo, the prosecutor had argued to the jury that
‘‘because the defendant [had] sat through all the [c]om-
monwealth’s evidence he was able to fabricate a cover
story tailored to answer every detail of the evidence
against him . . . .’’ The Supreme Judicial Court of Mas-
sachusetts held that such argument amounted to prose-
cutorial impropriety because ‘‘[t]he defendant is enti-
tled to hear the [c]ommonwealth’s evidence and to
confront the witnesses against him.’’ Id., 139–40. The
court, however, declined to consider the constitutional
implications, if any, of the prosecutor’s generic tailoring
argument. Id., 142 n.7.
Seventeen years after Person, the Supreme Judicial
Court of Massachusetts decided Commonwealth v.
Gaudette, supra, 441 Mass. 762. In Gaudette, which was
decided after Portuondo, the state requested, in light
of Portuondo, that the court reconsider its Person prohi-
bition on the prosecutor’s use of generic tailoring argu-
ments. Id., 763. The court, without considering whether
generic tailoring violated the Massachusetts constitu-
tion, reaffirmed its holding in Person, stating that ‘‘it is
impermissible for a prosecutor to argue in closing that
the jury should draw a negative inference from the
defendant’s opportunity to shape his testimony to con-
form to the trial evidence unless there is evidence intro-
duced at trial to support that argument.’’ Id., 767.
In Martinez v. People, supra, 244 P.3d 136–37, ‘‘[d]ur-
ing closing rebuttal argument, the prosecutor twice
[had] accused the defendant of tailoring his testimony
to meet the facts testified to by prior witnesses. The
prosecutor did not, however, tie these accusations of
tailoring to evidence presented at trial. Rather, the pros-
ecutor said that the defendant’s mere presence at trial
enabled him to tailor his testimony.’’ Although the
defendant objected to this argument, he did not raise
a constitutional ground in his objection. Id., 139. The
Supreme Court of Colorado, therefore, would not con-
sider whether the prosecutor’s argument infringed on
the defendant’s rights under the Colorado constitution.
Id. Nevertheless, the court held that such argument was
improper ‘‘as a matter of sound trial practice’’ due to
‘‘constitutional concerns.’’ Id., 141.
In State v. Daniels, supra, 182 N.J. 88, 98, the Supreme
Court of New Jersey, although not ruling on whether
generically tailored comments by the prosecutor were
‘‘constitutionally permissible’’ concluded that ‘‘[p]rose-
cutorial comment suggesting that a defendant tailored
his testimony inverts [several constitutional] rights, per-
mitting the prosecutor to punish the defendant for exer-
cising that which the [c]onstitution guarantees.’’ The
court also opined that generic tailoring arguments
‘‘undermine the core principle of our criminal justice
system—that a defendant is entitled to a fair trial’’—
and ‘‘debase the truth-seeking function of the adversary
process, violate the respect for the defendant’s individ-
ual dignity, and ignore the presumption of innocence
that survives until a guilty verdict is returned. . . . We
simply cannot conclude that generic accusations are a
legitimate means to bring about a just conviction. . . .
Therefore, pursuant to our supervisory authority, we
hold that prosecutors are prohibited from making
generic accusations of tailoring during summation.’’
(Citations omitted; internal quotation marks omitted.)
Id., 98. The court, thereafter, held that such argument
is prohibited during cross-examination as well. Id., 99.
Similarly, in State v. Swanson, supra, 707 N.W.2d
657–58, the Minnesota Supreme Court concluded: ‘‘We
believe, however, that although not constitutionally
required, the better rule is that the prosecution cannot
use a defendant’s exercise of his right of confrontation
to impeach the credibility of his testimony, at least in
the absence of evidence that the defendant has tailored
his testimony to fit the state’s case.’’ The court noted
that the Supreme Judicial Court of Massachusetts had
taken the same approach in Gaudette. Id., 658 n.2.
The only case offered by the defendant that clearly
held that generic tailoring violated the state constitution
is State v. Walsh, supra, 125 Hawaii 286–87.5 In Walsh,
‘‘the prosecutor [had] accused [the defendant] of tai-
loring his testimony when, in discussing credibility, she
argued that [the defendant] benefitted from hearing the
testimony of the other witnesses before he testified.
Manifestly the prosecutor’s remarks drew the jury’s
attention to [the defendant’s] presence at trial and his
resultant opportunity to tailor his testimony . . . .’’
(Internal quotation marks omitted.) Id., 286. The
Supreme Court of Hawaii held in relevant part: ‘‘(1)
in the criminal trial of a defendant, the prosecution’s
statements that a testifying defendant benefitted from
his trial presence and, thus, is less credible because he
heard the testimony of other witnesses . . . consti-
tute[s] prohibited generic tailoring arguments; (2) pro-
hibited generic tailoring arguments are reviewable as
plain error inasmuch as they affect a defendant’s sub-
stantial constitutional rights; (3) standard jury instruc-
tions regarding witness testimony and counsel’s argu-
ments do not cure such improper arguments; (4)
accordingly, whenever a defendant testifies, the jury
must be instructed that the defendant has a right to be
present during trial; and (5) in this case the error is not
harmless beyond a reasonable doubt.’’ (Internal quota-
tion marks omitted.) Id., 274. The court explained:
‘‘[U]pholding a defendant’s rights under the confronta-
tion clause is essential to providing a defendant with
a fair trial . . . and . . . a prosecutor’s comments
may not infringe on a defendant’s constitutional rights
. . . . The right of confrontation is a substantial right.
. . . The confrontation right provides the criminal
defendant with the opportunity to defend himself [or
herself] through our adversary system by prohibiting
ex parte trials, granting the defendant an opportunity
to test the evidence in front of a jury, and guaranteeing
the right to face-to-face confrontation. . . .
‘‘Generic accusations of tailoring also discourage a
defendant from exercising his constitutional right to
testify6 on his own behalf. . . . Additionally, [i]t is well
settled that an accused has a fundamental right to be
present at each critical stage of the criminal proceeding.
. . . The right of a criminal defendant to be present at
his trial is of no less than constitutional magnitude, and
is founded upon the [c]onfrontation and [d]ue [p]rocess
clauses of both the United States and Hawaii [c]onstitu-
tions. . . . It is a right of fundamental importance.’’
(Citations omitted; emphasis omitted; footnote in origi-
nal; internal quotation marks omitted.) Id., 284–85.
Although all of these cases speak to constitutional
issues and concerns, with the exception of Walsh and
Wallin, none of them relies on a state constitution to
support the prohibition of generic tailoring arguments
or questions. Rather, they rely on the supervisory
authority of those courts and on public policy grounds.
Furthermore, as demonstrated by the cases discussed
herein, Walsh and Wallin appear to represent a minority
of states that have chosen to depart from Portuondo
in some fashion. We conclude, therefore, that this factor
favors the state.
4
The next Geisler factor that the defendant discusses
is the persuasive relevant federal precedents. See State
v. McCleese, supra, 333 Conn. 387. The defendant con-
cedes that the United States Supreme Court in Por-
tuondo held that ‘‘generic tailoring arguments do not
violate the federal constitution’’ and that, therefore, this
factor favors the state. See Portuondo v. Agard, supra,529 U.S. 73. We agree.
5
The fifth factor briefed by the defendant concerns
related Connecticut precedent. See State v. McCleese,
supra, 333 Conn. 387. In her main appellate brief, the
defendant argues, in toto: ‘‘The first time this issue came
up in Connecticut was in Cassidy, where this court
strongly disapproved of generic tailoring arguments
because [i]nviting the fact finder to draw an inference
adverse to a defendant solely on account of the defen-
dant’s assertion of a constitutional right impermissibly
burdens the free exercise of that right and, therefore,
may not be tolerated. [State v. Cassidy, supra, 236 Conn.
127]. However, the court in [State v.] Alexander, [supra]
254 Conn. 290, overruled Cassidy. Subsequent attempts
to revisit this issue were unsuccessful. State v. Perez,
[78 Conn. App. 610, 629, 828 A.2d 626 (2003), cert.
denied, 271 Conn. 901, 859 A.2d 565 (2004)]; State v.
Papantoniou, [supra, 185 Conn. App. 93].7 Recently, as
discussed in more detail above, [our Supreme Court]
readdressed this issue [in] Weatherspoon, where [the]
court indicated that, should the practice of generic tai-
loring arguments persist, a rule prohibiting them may
become necessary. [State v. Weatherspoon, supra] 332
Conn. 554. Based upon the decision in Weatherspoon,
this factor favors the defendant.’’ (Footnote added;
internal quotation marks omitted.) The state concedes
that this factor ‘‘appears to favor the defendant.’’ We
agree.
In Weatherspoon, our Supreme Court explained:
‘‘[We] first addressed the constitutionality of tailoring
arguments in State v. Cassidy, [supra, 236 Conn. 120–
29]. We held in Cassidy that generic tailoring arguments
violate the sixth amendment’s confrontation clause
. . . but specific tailoring arguments are constitution-
ally permissible because they are linked solely to the
evidence and not, either directly or indirectly, to the
defendant’s presence at trial. . . . This court’s reason-
ing was straightforward: Inviting the fact finder to draw
an inference adverse to a defendant solely on account
of the defendant’s assertion of a constitutional right
impermissibly burdens the free exercise of that right
and, therefore, may not be tolerated. . . . Cassidy,
however, reassured the state that the prohibition
against generic tailoring arguments did not prevent the
prosecution from aggressively attacking a testifying
defendant’s credibility. We stated that the prosecutor,
in his closing argument . . . was not free to assert that
the defendant’s presence at trial had enabled him to
tailor his testimony to that of other witnesses. Such
argument exceeded the bounds of fair comment
because it unfairly penalized the defendant for asserting
his constitutionally protected right to confront his
accusers at trial. . . .
‘‘Four years later, the sixth amendment underpinning
of Cassidy was removed when the United States
Supreme Court held that generic tailoring arguments
do not violate any federal constitutional rights. Por-
tuondo v. Agard, supra, 529 U.S. 75–76. In Portuondo
. . . [t]he court pointed out that generic tailoring argu-
ments pertain to the defendant’s credibility as a witness,
and [are] therefore in accord with our [long-standing]
rule that when a defendant takes the stand, his credibil-
ity may be impeached and his testimony assailed like
that of any other witness. . . .
‘‘The Portuondo majority emphasized that its ruling
was limited to federal constitutional grounds and did
not address whether generic tailoring arguments were
always desirable as a matter of sound trial practice,
which, the court explained, was an inquiry best left to
trial courts, and to the appellate courts which routinely
review their work. . . . This caveat also was noted in
a concurrence by Justice Stevens, in which he expressed
the view that generic tailoring arguments should be dis-
couraged rather than validated, and emphasized that the
majority’s holding does not, of course, deprive [s]tates
or trial judges of the power . . . to prevent such argu-
ment[s] altogether. . . .
‘‘Because Cassidy was decided under the federal con-
stitution, Portuondo required us to overrule its holding,
which we did in State v. Alexander, supra, 254 Conn.
296. We stated in Alexander that generic tailoring com-
ments on the defendant’s presence at trial and his
accompanying opportunity to fabricate or tailor his tes-
timony were permissible under the federal constitution.
. . . Although the defendant in Alexander raised a state
constitutional claim through supplemental briefing, this
court was not persuaded by his argument.’’ (Citations
omitted; emphasis omitted; footnotes omitted; internal
quotation marks omitted.) State v. Weatherspoon,
supra, 332 Conn. 545–47.
The court further explained: ‘‘Although the present
case does not require us to decide at this time whether
to adopt a formal rule prohibiting generic tailoring argu-
ments as an exercise of our supervisory authority, such
a rule may become necessary if future cases reveal that
tailoring arguments are being made indiscriminately
and without an appropriate evidentiary basis. Likewise,
the fact that generic tailoring arguments do not burden
federal constitutional rights does not mean that they
pass constitutional muster under our state constitution.
We express no view on these issues, but observe that
a number of our sister states have determined that
generic tailoring arguments are impermissible as a mat-
ter of sound trial practice or state law.’’ Id., 554.
Although this history indicates that it may be time
for us to exercise our supervisory authority to prohibit
generic tailoring arguments or cross-examination in
criminal cases, we conclude that this history does not
necessarily demonstrate that our appellate courts, after
Portuondo, consider this a matter of state constitutional
law. Nevertheless, because it is obvious that we have
recognized in our case law the possibility that such
generic tailoring arguments and questions on cross-
examination during a criminal trial potentially could
impact a defendant’s state constitutional rights, we con-
clude that this factor, on balance, slightly favors the
defendant.
6
The final Geisler factor briefed by the defendant
requires us to consider relevant public policies, includ-
ing economical and sociological considerations. See
State v. McCleese, supra, 333 Conn. 387. The defendant
argues that generic tailoring comments violate Connect-
icut public policy, stating: ‘‘As [B.] Gershman’s Prosecu-
torial Misconduct § 11.16 (2d Ed. 2015) warns, a generic
tailoring insinuation may impinge on a defendant’s right
to take the stand and his right to confront witnesses
because the comment implies that a truthful defendant
would have stayed out of the courtroom before testi-
fying. Furthermore, the argument violates the defen-
dant’s right to testify because the state can only make
the argument when the defendant takes the stand.’’
(Internal quotation marks omitted.) She also argues in
her reply brief that ‘‘[t]elling the jury that it may . . .
use the defendant’s presence to find her less believable
sends [a] . . . message . . . that her presence [at her
criminal trial] means she is less believable. . . . [This]
tie[s] the defendant’s credibility to her presence at trial,
burdening her rights to confront and testify. . . . Men-
tioning that the defendant was the only witness to watch
the other witnesses exacerbates the problem because
it implies that the other witnesses are automatically
more believable because they were sequestered.’’ (Cita-
tions omitted.)
Although we agree in part with the defendant’s argu-
ment concerning the implications of generic tailoring
on the jury’s perception of the defendant during her
criminal trial; see part IV of this opinion; we are not
persuaded, in light of our analysis in parts I B 1 through 5
of this opinion, by the defendant’s argument that public
policy considerations compel a conclusion that generic
tailoring violates our state constitution.
C
On the basis of our analysis of the Geisler factors, the
defendant has not persuaded us that article first, § 8, of
the Connecticut constitution affords greater protection
than its federal counterparts, the fifth and sixth amend-
ments, on the issue of generic tailoring as to the defen-
dant’s right of confrontation and her right to testify on
her on own behalf. Consequently, her claim that the
prosecutor’s generic tailoring comments violated her
rights under the article first, § 8, of our state constitu-
tion fails.
II
The defendant next claims that the prosecutor vio-
lated her federal and state constitutional rights to due
process of law8 when, during cross-examination, she
asked the defendant whether she had a vested interest
in the outcome of the trial, and when, during rebuttal,
the prosecutor told the jury that it could consider the
defendant’s vested interest in the outcome of the trial.
She argues that ‘‘[t]hese questions and comments
improperly infringed upon the defendant’s presumption
of innocence. Furthermore, they are contrary to the
rule of State v. Medrano, 308 Conn. 604, [629–31, 65 A.3d
503] (2013), in which the court, under its supervisory
powers, instructed the trial courts not to instruct the
jury as to the defendant’s special interest in the outcome
of the case. This error was not harmless and this court
must overturn the defendant’s convictions on that
basis.’’ Because this claim is unpreserved, the defendant
requests Golding review. See footnote 3 of this opinion.
The defendant’s claim fails under the third prong of
Golding.
The following additional facts are relevant to our
discussion. During cross-examination of the defendant,
the following colloquy occurred:
‘‘[The Prosecutor]: And you have a lot riding on this
case, don’t you?
‘‘[The Defendant]: Today?
‘‘[The Prosecutor]: Sure.
‘‘[The Defendant]: Well, yeah. I have my son, my apart-
ment. I have a life. My son is everything to me.’’ The
defendant did not object.
During the prosecutor’s summation, it argued to the
jury, inter alia, that the defendant had a ‘‘vested interest
in the outcome of this case. And that can also be taken
into account when you’re deliberating this case.’’ The
defendant did not object to this argument.
On appeal, the defendant claims that the prosecutor
violated her right to due process of law and that such
questions and comments violate the spirit of Medrano,
which, she argues, should be read to include an implied
prohibition on the prosecutor telling the jury that the
defendant has a vested interest in the outcome of the
case, in addition to its explicit prohibition on such state-
ments in the context of the trial court’s jury instructions.
In Medrano, our Supreme Court considered, in rele-
vant part, whether the defendant had been deprived of
his right to a fair trial and to present a defense when
the trial court instructed the jury that it could consider
whether the defendant had an interest in the outcome
of the case when assessing the credibility of his trial
testimony. State v. Medrano, supra, 308 Conn. 624–25.
The court held that the instruction ‘‘was not unduly
repetitive, nor did it transcend the bounds of evenhand-
edness.’’ Id., 626. Nevertheless, because such an instruc-
tion ‘‘could give rise to a danger of juror misunder-
standing,’’ the court employed its supervisory authority
over the administration of justice by directing the trial
court, in the future, ‘‘to refrain from instructing jurors,
when a defendant testifies, that they may specifically
consider the defendant’s interest in the outcome of the
case and the importance to him of the outcome of the
trial.’’ Id., 630–31; see also State v. Courtney G.,
Conn. , n.9, A.3d (2021) (explaining holding
in Medrano).
In the present case, the defendant has not persuaded
us that the questions and argument of the prosecutor
implicated her right to due process of law. Our Supreme
Court in Medrano held that the trial court’s instructions,
specifically telling the jury that it could consider the
defendant’s interest in the outcome of the case and the
importance to him of the outcome of the trial, did not
implicate the defendant’s right to due process of law.
State v. Medrano, supra, 308 Conn. 625. The defendant
in the present case has failed to persuade us that a
prosecutor’s similar argument could have more of an
implication on the defendant’s right to due process of
law than a court’s jury instructions.
In the alternative, the defendant requests that we
employ our supervisory authority to expand on our
Supreme Court’s decision in Medrano by making the
prohibition set forth therein applicable to comments by
prosecutors. We will discuss the use of our supervisory
authority over the administration of justice in part IV
of this opinion.
III
The defendant also claims that the prosecutor com-
mitted improprieties that deprived her of a fair trial
when she argued that the defendant had tailored her
testimony, implied that she had a motive to lie, and
infringed on her right to the presumption of innocence.
Having concluded in parts I and II of this opinion that
the questions and argument of the prosecutor did not
infringe on the defendant’s constitutional rights, we
need not consider this claim further. See id., 610 (‘‘[I]n
analyzing claims of prosecutorial [impropriety], we
engage 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.’’ (Internal quotation marks omit-
ted.)). The defendant has failed to establish her claim.
IV
We next consider the defendant’s requests that we
employ our supervisory authority over the administra-
tion of justice to prohibit the prosecutor from making
generic tailoring arguments and comments and that we
expand on our Supreme Court’s decision in Medrano
to prohibit the prosecutor from making ‘‘interest in
the outcome’’ arguments about the defendant.9 As for
prosecutorial argument on the defendant’s ‘‘interest in
the outcome’’ of her criminal trial, the defendant has failed
to persuade us that such argument merits the exercise
of our supervisory authority. See State v. Courtney G.,
supra, Conn. n.9. On the issue of generic tailoring,
we agree to exercise our supervisory authority over the
administration of justice to prohibit such questions and
arguments because they are likely to implicate the per-
ceived fairness of the judicial system and they could
give rise to a danger of juror misunderstanding.
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . Under our supervisory authority, we
have adopted rules intended to guide the lower courts
in the administration of justice in all aspects of the
criminal process.’’ (Internal quotation marks omitted.)
State v. Weatherspoon, supra, 332 Conn. 552. ‘‘The exer-
cise of our supervisory powers is an extraordinary rem-
edy to be invoked only when circumstances are such
that the issue at hand, while not rising to the level
of a constitutional violation, is nonetheless of utmost
seriousness, not only for the integrity of a particular
trial but also for the perceived fairness of the judicial
system as a whole. . . .
‘‘We recognize that this court’s supervisory authority
is not a form of free-floating justice, untethered to legal
principle. . . . Rather, the rule invoking our use of
supervisory power is one that, as a matter of policy, is
relevant to the perceived fairness of the judicial system
as a whole, most typically in that it lends itself to the
adoption of a procedural rule that will guide lower
courts in the administration of justice in all aspects of
the [adjudicatory] process. . . . Indeed, the integrity
of the judicial system serves as a unifying principle
behind the seemingly disparate use of [this court’s]
supervisory powers.’’ (Citations omitted; internal quota-
tion marks omitted.) In re Yasiel R., supra, 317
Conn. 789–90.
‘‘Generally, cases in which we have invoked our
supervisory authority for rule making have fallen into
two categories . . . . In the first category are cases
wherein we have utilized our supervisory power to artic-
ulate a procedural rule as a matter of policy, either
as [a] holding or dictum, but without reversing [the
underlying judgment] or portions thereof. . . . In the
second category are cases wherein we have utilized our
supervisory powers to articulate a rule or otherwise
take measures necessary to remedy a perceived injus-
tice with respect to a preserved or unpreserved claim
on appeal.’’ (Internal quotation marks omitted.) State
v. Weatherspoon, supra, 332 Conn. 552–53; id. (deciding
it was unnecessary to consider defendant’s request for
exercise of supervisory authority because prosecutor’s
tailoring argument was specific rather than generic).
A
The defendant requests that we employ our supervi-
sory authority over the administration of justice to
expand on our Supreme Court’s decision in Medrano
to prohibit the prosecutor from employing ‘‘interest in
the outcome’’ questions and arguments about a defen-
dant who exercises her or his right to testify. She argues
that ‘‘ ‘[i]nterest in the outcome’ arguments apply to
both guilty and innocent defendants and therefore are of
minimal value in assessing the defendant’s credibility.
Furthermore, [the] court in Medrano banned jury
instructions that emphasize the defendant’s interest in
the outcome of the case, and it significantly defeats the
purpose of this rule to then allow the state to argue
about the defendant’s interest in the outcome and tell
the jury that it may take that interest into consider-
ation.’’ We are not persuaded by the defendant’s argu-
ments in support of this request.
In Medrano, our Supreme Court held that the trial
court’s instructions, telling the jury that it could con-
sider the defendant’s interest in the outcome of the
case and the importance to him of the outcome of
the trial, did not implicate the defendant’s right to due
process of law but that they could give rise to a danger
of juror misunderstanding. State v. Medrano, supra,
308 Conn. 629–31. In the present case, the defendant’s
attempts to equate the court’s instructions with the
argument of the prosecutor are not persuasive. In cases
where a criminal defendant has taken the witness stand,
the jury is well aware that the defendant is the one on
trial and that he or she has an interest in the outcome
of the case. The argument of the prosecutor, reminding
the jury that the defendant has an interest does not
carry the inherent danger of misunderstanding that a
judge’s instruction would have on the jury. As our
Supreme Court recently noted: ‘‘Our holding in
Medrano was predicated on the trial court’s role as a
neutral and detached arbiter of justice and its duty to
instruct the jurors on the law in a fair, impartial, and
dispassionate manner. Although a prosecutor is a minis-
ter of justice . . . she is not neutral, detached, impar-
tial, or dispassionate. Instead, a prosecutor is an advo-
cate with a professional obligation to argue zealously,
albeit fairly, on behalf of the state.’’ (Citation omitted.)
State v. Courtney G., supra, Conn. n.9. The jury
understands the difference between advocacy by the
state on one hand and an instruction of law by the
court on the other, which it is told it must follow. The
argument of counsel is just that, argument, and the jury
in the present case specifically was instructed as such.
Accordingly, we are not persuaded by the defendant’s
argument.
B
The defendant also requests that, for policy reasons,
we employ our supervisory authority over the adminis-
tration of justice to prohibit the prosecutor from making
generic tailoring arguments. She argues that if we were
to prohibit such remarks, ‘‘[t]he prosecutor would still
be free to challenge a defendant’s overall credibility
by making specific tailoring arguments. In closing, the
prosecutor could comment on the defendant’s testi-
mony, and how it matched or conflicted with other
evidence. The prosecutor [however] could not refer
explicitly to the fact that the defendant was in the court-
room or that he [or she] heard the testimony of other
witnesses, and was thus able to tailor his [or her] testi-
mony. . . . This is a rule that can be readily fashioned
and easily followed in a trial setting.’’ (Citation omitted;
internal quotation marks omitted.) We agree that there
are important public policy reasons that make it neces-
sary for us to employ our supervisory authority over
the administration of justice to set forth a procedure
to ensure that prosecutors make only specific and not
generic tailoring remarks during a criminal trial.
In reaching this conclusion, we are guided by the
rationale that our Supreme Court has set forth for the
exercise of appellate supervisory authority. ‘‘We deem
it appropriate, in light of concerns of fundamental fair-
ness, to consider the substance of this issue pursuant to
our supervisory authority for the purpose of providing
guidance to trial courts in future cases. As an appellate
court, we possess an inherent supervisory authority
over the administration of justice. . . . The standards
that we set under this supervisory authority are not
satisfied by observance of those minimal historic safe-
guards for securing trial by reason which are summa-
rized as due process of law . . . . Rather, the stan-
dards are flexible and are to be determined in the
interests of justice. . . . We previously have exercised
our supervisory powers to direct trial courts to adopt
judicial procedures that will address matters that are
of utmost seriousness, not only for the integrity of a
particular trial but also for the perceived fairness of the
judicial system as a whole.’’ (Citations omitted; internal
quotation marks omitted.) Duperry v. Solnit, 261 Conn.
309, 326–27, 803 A.2d 287 (2002); id., 329–31 (employing
supervisory authority to enact new rule mandating that
trial court must canvass defendant who, with no contes-
tation by prosecutor, pleads not guilty by reason of
insanity, but declining to apply that rule to present
case); see also State v. Carrion, 313 Conn. 823, 847–49,
100 A.3d 361 (2014) (although defendant failed to prove
that jury charge deprived him of fair trial, our Supreme
Court exercised its supervisory authority over adminis-
tration of justice to direct trial court to refrain from
giving that particular instruction in future).
In Carrion, our Supreme Court explained that ‘‘the
cases in which this court has invoked its supervisory
authority can be divided into two different categories.
In the first category are cases [in which] we have utilized
our supervisory power[s] to articulate a procedural rule
as a matter of policy, either as holding or dictum, but
without reversing convictions or portions thereof. In
the second category are cases [in which] we have uti-
lized our supervisory powers to articulate a rule or
otherwise take measures necessary to remedy a per-
ceived injustice with respect to a preserved or unpre-
served claim on appeal. Although we . . . have noted
that [o]ur cases have not always been clear as to the
reason for this distinction . . . a review of the cases
in both categories demonstrates that, in contrast to the
second category, the first category consists of cases
[in which] there was no perceived or actual injustice
apparent on the record, but the facts of the case lent
themselves to the articulation of prophylactic proce-
dural rules that might well avert such problems in the
future. . . .
‘‘For purposes of the second category of cases—cases
in which we reverse a conviction—the defendant must
establish that the invocation of our supervisory author-
ity is truly necessary because [o]ur supervisory powers
are not a last bastion of hope for every untenable appeal.
. . . In such circumstances, the exercise of our supervi-
sory powers is an extraordinary remedy to be invoked
only when circumstances are such that the issue at
hand, while not rising to the level of a constitutional
violation, is nonetheless of [the] utmost seriousness,
not only for the integrity of a particular trial but also
for the perceived fairness of the judicial system as a
whole. . . . Because [c]onstitutional, statutory and
procedural limitations are generally adequate to protect
the rights of the defendant and the integrity of the
judicial system, this court will invoke its supervisory
powers to reverse a conviction only in the rare circum-
stance [in which] these traditional protections are inad-
equate to ensure the fair and just administration of
the courts. . . . This demanding standard is perfectly
appropriate when we are asked to reverse a conviction
under our supervisory powers.
‘‘The first category of cases, however, presents an
entirely different set of circumstances. We invoke our
supervisory authority in such a case . . . not because
the use of that authority is necessary to ensure that
justice is achieved in the particular case. Rather, we
have determined that the defendant in that case
received a fair trial and therefore is not entitled to the
extraordinary remedy of a new trial. Nevertheless, it
may be appropriate, in such circumstances, to direct
our trial [judges] to conduct themselves in a particular
manner so as to promote fairness, both perceived and
actual, in future cases. As we tacitly have recognized
by invoking our supervisory authority in such cases,
because we are not imposing any remedy in the case
[on appeal]—let alone the extraordinary remedy of a
new trial—there is no need for this court to justify the
use of extraordinary measures prior to exercising its
supervisory authority. Rather . . . we are free to
invoke our supervisory authority prospectively when
prudence and good sense so dictate.’’ (Citations omit-
ted; emphasis altered; internal quotation marks omit-
ted.) State v. Carrion, supra, 313 Conn. 850–52; see also
State v. Elson, 311 Conn. 726, 768–70 n.30, 91 A.3d 862(2014). This is such a case.
First, this case does not fit into the second category
of cases requiring the extraordinary remedy of a retrial
because the record reflects that the generic tailoring
comments of the prosecutor did not affect the fairness
of the defendant’s trial. The defendant admitted to driv-
ing while her license was under suspension, and, as
to the crimes of driving while under the influence of
intoxicating drugs or alcohol and attempt to commit
risk of injury to a child, the evidence demonstrates that
the people with whom she had come into contact at
the day care believed that her behavior and demeanor
exhibited intoxication, that she failed the field sobriety
tests that were administered, and that she was unsteady
on her feet and confused. Furthermore, Divenere testi-
fied that the medication Xanax is used for anxiety and
panic disorders and that the defendant told him that
she was taking Xanax, although she did not admit to
having taken it that day. Divenere also testified that
‘‘Xanax can impair one’s ability to drive,’’ and that, after
the defendant tested negative for alcohol, he asked her
to provide a urine sample so that he could test for drugs,
but she refused. The jury reasonably could infer from
the defendant’s refusal to provide the requested urine
sample that she was concerned that such a sample
would show the presence of Xanax in her system. Fur-
thermore, the prosecutor’s generic tailoring comments
were limited in nature, compromising only a few ques-
tions and only three sentences of the prosecutor’s rebut-
tal argument. Because we have concluded that generic
tailoring does not implicate the defendant’s constitu-
tional rights, the burden to prove any harm from the
prosecutor’s use of generic tailoring is on the defendant,
and she has failed to prove that the prosecutor’s limited
use of generic tailoring during her criminal trial was
harmful.
Despite our conclusion that the prosecutor’s generic
tailoring comments did not prejudice the defendant, we
are convinced that, to ensure the perceived and actual
fairness of trials in the future, generic tailoring argu-
ments should be avoided. Under our criminal justice
system, a defendant has both federal and state constitu-
tional rights, including the rights to be present at trial,
to confront the state’s witnesses, to call witnesses and
present evidence, and to testify, or to not testify, on
his or her own behalf. See U.S. Const., amends. V, VI
and XIV; Conn. Const., art. I, § 8. ‘‘[A] criminal defendant
is not simply another witness. Those who face criminal
prosecution possess fundamental rights that are essen-
tial to a fair trial. Pointer v. Texas, 380 U.S. 400, 403,
[85 S. Ct. 1065, 13 L. Ed. 2d 923] (1965) . . . . Indeed,
a criminal defendant has the right to be present at trial,
see Illinois v. Allen, 397 U.S. 337, 338, [90 S. Ct. 1057,
25 L. Ed. 2d 353] (1970), to be confronted with the
witnesses against him and to hear the [s]tate’s evidence,
see Pointer [v. Texas], supra, [403], to present witnesses
and evidence in his defense, see Washington v. Texas,
388 U.S. 14, 18–19, [87 S. Ct. 1920, 18 L. Ed. 2d 1019]
(1967), and to testify on his own behalf, see Rock v.
Arkansas, 483 U.S. 44, 49, [107 S. Ct. 2704, 97 L. Ed.
2d 37] (1987).’’ (Internal quotation marks omitted.) State
v. Daniels, supra, 182 N.J. 97–98.
Under our rules of practice, a criminal defendant is
required to be present at his or her criminal trial, unless
excused under Practice Book § 44-8.10 Additionally, the
order of the presentation of evidence at a criminal trial,
unless there is cause to permit otherwise, must proceed
as follows: ‘‘(1) The prosecuting authority shall present
the case-in-chief. (2) The defendant may present a case-
in-chief. (3) The prosecuting authority and the defen-
dant may present rebuttal evidence in successive rebut-
tals, as required. The judicial authority for cause may
permit a party to present evidence not of a rebuttal
nature, and if the prosecuting authority is permitted to
present further evidence in chief, the defendant may
respond with further evidence in chief. (4) The prose-
cuting authority shall be entitled to make the opening
and final closing arguments. (5) The defendant may
make a single closing argument following the opening
argument of the prosecuting authority.’’ Practice Book
§ 42-35; see also General Statutes § 54-88. Accordingly,
for a defendant to exercise his or her rights to be present
at trial and to confront that state’s witnesses, he or
she necessarily must sit through the state’s case before
exercising the right to testify. See Practice Book § 42-
35. That is the way our system is designed.
Although the United States Supreme Court in Por-
tuondo declined to recognize a federal constitutional
prohibition against a prosecutor making comments con-
cerning a testifying defendant’s opportunity to tailor
his or her testimony because of his or her mere presence
in the courtroom during the state’s case, the ‘‘Portuondo
majority emphasized that its ruling was limited to fed-
eral constitutional grounds and did not address whether
generic tailoring arguments were always desirable as
a matter of sound trial practice, which, the court
explained, was an inquiry best left to trial courts, and
to the appellate courts which routinely review their
work. Portuondo v. Agard, supra, 529 U.S. 73 n.4. This
caveat also was noted in a concurrence by Justice Ste-
vens, in which he expressed the view that generic tai-
loring arguments should be discouraged rather than
validated, and emphasized that the majority’s holding
does not, of course, deprive [s]tates or trial judges of
the power . . . to prevent such argument[s] altogether.
Id., 76.’’ (Internal quotation marks omitted.) State v.
Weatherspoon, supra, 332 Conn. 546–47.
‘‘Justice Ginsburg dissented in Portuondo on the basis
of her belief that generic tailoring arguments in closing
arguments unduly burden a defendant’s sixth amend-
ment right to be present at trial and to confront the
accusers against him, and do not aid the jury in its
truth-seeking function because a prosecutorial com-
ment . . . tied only to the defendant’s presence in the
courtroom and not to his actual testimony does not
assist the jury in sort[ing] those who tailor their testi-
mony from those who do not, much less the guilty from
the innocent. [Portuondo v. Agard, supra, 529 U.S. 77–
78].’’ (Internal quotation marks omitted.) State v. Weath-
erspoon, supra, 332 Conn. 547 n.8. Justice Ginsburg
contended, instead, that the majority was ‘‘trans-
form[ing] a defendant’s presence at trial from a [s]ixth
[a]mendment right into an automatic burden on his
credibility.’’ Portuondo v. Agard, supra, 76 (Ginsburg,
J., dissenting).
Our Supreme Court in Weatherspoon carefully
explained that ‘‘a tailoring argument does not automati-
cally become appropriate just because a defendant
chooses to testify in his or her criminal trial, and prose-
cutors and trial courts must take care to ensure that
any such argument is tied expressly and specifically
to evidence that actually supports the inference of tai-
loring. It is true that the United States Supreme Court
held in Portuondo that tailoring arguments do not vio-
late the sixth amendment, but the court made equally
clear, however, that state courts may prohibit or limit
tailoring arguments by local decree as a matter of sound
trial practice. See [id.] 73 n.4; id., 76 (Stevens, J., concur-
ring).’’ (Emphasis added.) State v. Weatherspoon, supra,
332 Conn. 553–54.
Although the United States Supreme Court has deter-
mined that generic tailoring arguments are not violative
of the federal constitution, and our appellate courts,
since shortly after Portuondo; see State v. Alexander,
supra, 254 Conn. 295–96 (overruling State v. Cassidy,
supra, 236 Conn. 112); have not been persuaded that
such arguments are violative of the Connecticut consti-
tution, we, nonetheless, agree with the defendant that
these remarks should be prohibited because they are
likely to implicate the perceived fairness of the judicial
system and they could give rise to a danger of juror
misunderstanding.
In State v. Cassidy, supra, 236 Conn. 120, our Supreme
Court determined that generic tailoring arguments,
made by the prosecutor during closing argument to the
jury, ‘‘invited the jury to draw an inference adverse to
the defendant solely because he asserted his constitu-
tional right to be present at trial and, consequently,
that those comments unreasonably interfered with the
defendant’s free exercise of that right.’’ The court
explained: ‘‘The right to confrontation is fundamental to
a fair trial under both the federal and state constitutions.
Pointer v. Texas, [supra, 380 U.S. 403]; State v. Jarzbek,
204 Conn. 683, 707, 529 A.2d 1245 (1987) [cert. denied,
484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988)];
State v. Reardon, 172 Conn. 593, 599–600, 376 A.2d
65 (1977). It is expressly protected by the sixth and
fourteenth amendments to the United States constitu-
tion; Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105,
39 L. Ed. 2d 347 (1974); Pointer v. Texas, supra, [403];
and by article first, § 8, of the Connecticut constitution.
State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925).
State v. Hufford, 205 Conn. 386, 400–401, 533 A.2d 866(1987). The right of physical confrontation is a . . .
fundamental component of the [federal and state con-
frontation] clauses . . . State v. Jarzbek, supra, 692;
and guarantees an accused the right to be present in
the courtroom at every stage of his trial. Illinois v.
Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d
353 (1970).
‘‘Like cross-examination, face-to-face confrontation
[at trial] . . . ensure[s] the integrity of the [fact-find-
ing] process . . . Coy v. Iowa, 487 U.S. 1012, 1019–20,
108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988); because [i]t
is always more difficult to tell a lie about a person to
his face than behind his back. Id., 1019. Thus, [i]t is
widely recognized that physical confrontation contri-
butes significantly, albeit intangibly, to the truth-seek-
ing process . . . . In addition, physical confrontation
furthers other goals of our criminal justice system, in
that it reflects respect for the defendant’s dignity and
the presumption of innocence until proven guilty. State
v. Jarzbek, supra, 204 Conn. 695. Indeed, the literal right
to confront one’s accusers is so deeply rooted in human
feelings of what is necessary for fairness [that] the right
of confrontation contributes to the establishment of a
system of criminal justice in which the perception as
well as the reality of fairness prevails. Coy v. Iowa,
supra, 1018–19, quoting Lee v. Illinois, 476 U.S. 530,
540, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986). Because
of the important goals furthered by an accused’s right
to encounter adverse witnesses face-to-face, the free
exercise of that right may not be impaired absent a
compelling justification for the infringement. See, e.g.,
Maryland v. Craig, 497 U.S. 836, 850, 110 S. Ct. 3157,
111 L. Ed. 2d 666 (1990) (defendant’s right to confront
accusatory witnesses may be satisfied absent a physi-
cal, face-to-face confrontation at trial only where denial
of such confrontation is necessary to further an
important public policy and only where the reliability
of the testimony is otherwise assured); State v. Jarzbek,
supra, 704–705 (exclusion of defendant during testi-
mony of minor victim of sexual assault warranted only
upon clear and convincing showing by state of compel-
ling need to do so).’’ (Emphasis omitted; footnotes omit-
ted; internal quotation marks omitted.) State v. Cassidy,
supra, 236 Conn. 122–24.
Although our Supreme Court overruled Cassidy in
State v. Alexander, supra, 254 Conn. 296, it did so in
light of Portuondo; see id., 296, 299–300; and it was not
asked to use its supervisory authority to ban generic
tailoring arguments. Nevertheless, the concerns regard-
ing the use of generic tailoring expressed by the court
in Cassidy have not gone away since Portuondo and
have led a number of state appellate courts to use their
supervisory authority to prohibit such arguments. We
join those courts today.
In particular, we agree with the New Jersey Supreme
Court that ‘‘[p]rosecutorial comment suggesting that a
defendant tailored his testimony inverts [her rights to
be present at trial, confront the witnesses presented
against her and to hear the state’s case], permitting the
prosecutor to punish the defendant for exercising that
which the [c]onstitution guarantees. Although, after
Portuondo, prosecutorial accusations of tailoring are
permissible under the [f]ederal [c]onstitution, we none-
theless find that they undermine the core principle of
our criminal justice system—that a defendant is entitled
to a fair trial.’’ State v. Daniels, supra, 182 N.J. 98. We
also are mindful that our Supreme Court in Weath-
erspoon noted the importance of tying a tailoring argu-
ment specifically to evidence that gives rise to an infer-
ence of tailoring. See State v. Weatherspoon, supra, 332
Conn. 544. When it did so, the court also stated: ‘‘Our
approval of specific tailoring arguments should not be
taken as a blanket approval of all tailoring arguments.
. . . Although the present case does not require us to
decide at this time whether to adopt a formal rule pro-
hibiting generic tailoring arguments as an exercise of
our supervisory authority, such a rule may become nec-
essary if future cases reveal that tailoring arguments are
being made indiscriminately and without an appropriate
evidentiary basis.’’ (Citation omitted.) Id., 553–54. Thus,
although our Supreme Court did not address explicitly
the propriety of generic tailoring arguments, it made
clear that it remains concerned, even after Alexander,
about the use of such arguments. We conclude that
the present case, which does involve generic tailoring
arguments by the prosecutor, requires us to decide
whether to exercise our supervisory authority, and, for
the reasons set forth in this part IV B, we do so to
prohibit generic tailoring arguments at all future crimi-
nal trials.
In announcing this new rule of procedure, we recog-
nize that the line between generic and specific tailoring
arguments is not always clear. For this reason, we set
forth the following procedure to be used if the state
wishes to make a tailoring argument. Prior to asking
questions on cross-examination of the defendant that
suggest that the defendant has tailored his or her testi-
mony or before making such comments in closing argu-
ments, the prosecutor shall alert the defendant and the
court of the intention to do so. If the defendant objects
to such cross-examination or comments, the court must
rule on whether the proposed questions or comments
constitute generic or specific tailoring. If the court con-
cludes that the cross-examination or comments consti-
tute specific tailoring because they are tied to specific
evidence that gives rise to an inference that the defen-
dant has tailored his or her testimony, the questions
or comments, unless otherwise improper, should be
permitted. If the court concludes that the questions or
comments constitute generic tailoring, they shall be
prohibited. In addition, to the extent that the court
permits a specific tailoring argument to be made, the
defendant may request that the court instruct the jury
during its final charge that the defendant had an abso-
lute right to be present throughout the entire trial and
that the jury may not draw an inference that the defen-
dant’s testimony is not credible simply because the
defendant was present during the trial. The trial court
shall include such a charge in its final charge to the jury
if it is requested. This procedure strikes the appropriate
balance of ensuring that the state is not deprived of the
opportunity to ask questions or make comments based
on the evidence, while at the same time ensuring that
the defendant’s rights to be present at his or her criminal
trial and to confront the state’s witnesses are not bur-
dened by a suggestion that he or she has taken unfair
advantage by exercising those rights.
V
The defendant’s final claim is that her conviction of
attempt to commit risk of injury to a child should be
vacated because it is not a cognizable crime. The defen-
dant, although requesting review pursuant to State v.
Golding, supra, 213 Conn. 239–40; see footnote 3 of
this opinion; concedes that ‘‘the Appellate Court cannot
overrule a Supreme Court case and, therefore, [she]
makes this argument for the sake of future review.’’ We
conclude, as recognized by the defendant, that we are
bound by our Supreme Court’s decision in State v. Sora-
bella, 277 Conn. 155, 172–74, 891 A.2d 897 (rejecting
claim that ‘‘attempt to commit risk of injury to a child
. . . is not a cognizable offense’’), cert. denied, 549 U.S.
821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). Accordingly,
the defendant has preserved this issue should our
Supreme Court wish to revisit its decision. She, none-
theless, cannot prevail on that claim in this appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
1
After Divenere arrested the defendant, a staff member of the day care
telephoned the defendant’s grandmother, who picked up the child.
2
The court instructed the jury that it could draw an adverse inference
from the defendant’s refusal but that it was not required to do so. The court
instructed: ‘‘Evidence was presented that after the defendant submitted to
a breath test, she refused to submit to a urine test. If you find that the
defendant did refuse to submit to the urine test, you may make any reason-
able inference that follows from that fact, but you are not required to do so.’’
3
‘‘Pursuant to Golding, a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. . . . State v. Golding, supra, 213
Conn. 239–40; see also In re Yasiel R., [supra, 317 Conn. 781] (modifying
third prong of Golding).’’ (Emphasis omitted; internal quotation marks omit-
ted.) State v. Weatherspoon, 332 Conn. 531, 548 n.9, 212 A.3d 208 (2019).
‘‘The appellate tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most relevant in the particular
circumstances.’’ (Internal quotation marks omitted.) State v. Papantoniou,
185 Conn. App. 93, 102–103, 196 A.3d 839, cert. denied, 330 Conn. 948, 196
A.3d 326 (2018).
4
Article first, § 8, of the constitution of Connecticut provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard
by himself and by counsel . . . [and] to be confronted by the witnesses
against him . . . . No person shall be compelled to give evidence against
himself, nor be deprived of life, liberty or property without due process of
law . . . .’’
5
In State v. Wallin, supra, 166 Wn. App. 376–77, the Court of Appeals of
Washington reversed the defendant’s conviction because the prosecutor had
made a generic tailoring argument. In doing so, the court noted that ‘‘Mattson
(Hawaii), Daniels (New Jersey), and Swanson (Minnesota) are helpful.’’ Id.,
376. The court further noted that the Mattson decision was based on an
analysis of the Hawaii constitution, whereas the courts in Daniels and
Swanson relied ‘‘on their ability to fashion a trial practice rule, which is
not something that we could do.’’ Id. Thus, it appears that the court in
Wallin relied on the Washington constitution in reaching its conclusion,
although it did not engage in a substantive analysis of the relevant provisions
of its state constitution.
6
‘‘The right of a defendant to testify is guaranteed by sections 5, 14, and
10 of article I of the Hawaii Constitution. . . . The right is essential to due
process of law as guaranteed under section 5 of article 1. . . . The right
to testify is also guaranteed through the compulsory process clause of
section 14, which states in pertinent part that the accused shall have compul-
sory process for obtaining witnesses in the accused’s favor . . . . Logically
included in the accused’s right to call witnesses . . . is a right to testify
himself, should he decide it is in his favor to do so . . . since the most
important witness for the defense in many criminal cases is the defendant
himself. . . . The opportunity to testify is a necessary corollary to the guar-
antee, under section 10, against compelled testimony since every criminal
defendant is privileged to testify in his or her defense.’’ (Citations omitted;
internal quotation marks omitted.) State v. Walsh, supra, 125 Hawaii 285 n.22.
7
In State v. Papantoniou, supra, 185 Conn. App. 100 n.14, this court did
not address the defendant’s claim that generic tailoring arguments violated
the defendant’s rights under the Connecticut constitution. Instead, we con-
cluded that, even if we assumed that a constitutional violation had occurred,
the defendant could not prevail on his unpreserved constitutional claim
because the state had proved that the alleged constitutional violation was
harmless beyond a reasonable doubt. Id., 103.
8
The defendant does not brief separately a state constitutional due process
claim or contend that the state constitution affords greater protections than
its federal counterpart. Accordingly, we consider this claim only under the
federal constitution. See, e.g., State v. Scott, 158 Conn. App. 809, 814 n.4,
121 A.3d 742 (when analysis of rights under Connecticut constitution is not
briefed separately by appellant, we consider rights as coextensive with
federal constitution), cert. denied, 319 Conn. 946, 125 A.3d 527 (2015).
9
We note that the claims of error giving rise to these requests were not
preserved and that our supervisory authority ‘‘is not intended to serve as a
bypass to the bypass [doctrines], permitting the review of unpreserved
claims of case specific error—constitutional or not—that are not otherwise
amenable to relief under Golding or the plain error doctrine. . . . [A] defen-
dant seeking review of an unpreserved claim under our supervisory authority
must demonstrate that his claim is one that, as a matter of policy, is relevant
to the perceived fairness of the judicial system as a whole, most typically
in that it lends itself to the adoption of a procedural rule that will guide the
lower courts in the administration of justice in all aspects of the criminal
process.’’ (Citation omitted; internal quotation marks omitted.) State v.
Elson, 311 Conn. 726, 768, 91 A.3d 862 (2014); see also Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123,
155–61, 84 A.3d 840 (2014) (noting that ‘‘a reviewing court has the authority
to review [unpreserved] claims under its supervisory power’’ and setting
forth ‘‘general principles’’ of such review). We conclude that the record in
the present case is adequate for review of the defendant’s claims, both
parties have had the opportunity to be heard on these claims, neither party
will suffer unfair prejudice by our review of the claims, and the state, which
responded to these claims in its brief, does not object to review pursuant
to our supervisory authority. See In re Yasiel R., supra, 317 Conn. 790.
Furthermore, for the reasons that follow, we conclude that the defendant’s
claims implicate the perceived fairness of the judicial system as a whole
and merit review under our supervisory authority.
10
Practice Book § 44-8 provides: ‘‘The defendant must be present at the
trial and at the sentencing hearing, but, if the defendant will be represented
by counsel at the trial or sentencing hearing, the judicial authority may: (1)
Excuse the defendant from being present at the trial or a part thereof or
the sentencing hearing if the defendant waives the right to be present; (2)
Direct that the trial or a part thereof or the sentencing hearing be conducted
in the defendant’s absence if the judicial authority determines that the
defendant waived the right to be present; or (3) Direct that the trial or a
part thereof be conducted in the absence of the defendant if the judicial
authority has justifiably excluded the defendant from the courtroom because
of his or her disruptive conduct, pursuant to Section 42-46.’’ (Emphasis
added.)