State v. Felix R. ( 2015 )

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STATE v. FELIX R.—CONCURRENCE
McDONALD, J., with whom PALMER, J., joins, con-
curring. The comments of Michael A. Pepper, the senior
assistant state’s attorney in the present case, clearly
conveyed a message to the jury that the defendant,
Felix R., should be blamed for compelling the victim
to endure the effects of an investigation into her allega-
tions and to have to testify at trial about the basis of
those allegations. Pepper’s comments sought to invoke
sympathy for the victim while impugning the defen-
dant’s constitutional right to confront witnesses against
him, to mount a defense, and to hold the state to its
burden of proving his guilt beyond a reasonable doubt.1
The comments were improper and egregious. In con-
cluding that all but one of Pepper’s comments were not
improper because they were ambiguous, contrary to
the interpretation of the unanimous Appellate Court
panel; see State v. Felix R., 147 Conn. App. 206, 220–27,
83 A.3d 619 (2013); the majority disassembles the state-
ments from the context in which they were made, and
then constructs a strained interpretation of each to
yield the ambiguity the majority creates. Of even greater
concern, the majority imports our rules of statutory
construction for assessing ambiguity that have no place
in evaluating whether the prosecution’s argument vio-
lated the defendant’s constitutional right to a fair trial.
Compounding these errors, the majority suggests that
multiple ambiguous statements could demonstrate ‘‘a
pattern’’ that would deprive the prosecutor’s comments
of a presumption of propriety, but inexplicably fails to
recognize what the collective force of Pepper’s state-
ments in the present case manifestly reveals. Indeed,
this would seem to be a particularly inapt case to apply
such a presumption in light of the past occasions on
which this particular senior assistant state’s attorney
has been found to have exceeded the bounds of
proper argument.2
Therefore, I agree with the Appellate Court that Pep-
per committed prosecutorial impropriety during the
course of closing argument. I part company with the
Appellate Court, however, with respect to the question
of whether the improprieties deprived the defendant of
a fair trial. In resolving that question, ‘‘we consider: (1)
the extent to which the [impropriety] was invited by
defense conduct or argument; (2) the severity of the
[impropriety]; (3) the frequency of the [impropriety];
(4) the centrality of the [impropriety] to the critical
issues in the case; (5) the strength of the curative mea-
sures adopted; and (6) the strength of the state’s case.’’
(Internal quotation marks omitted.) State v. Angel T.,
292 Conn. 262, 287, 973 A.2d 1207 (2009). I agree with
the Appellate Court that the first, second, and fourth
factors weigh in the defendant’s favor. See State v. Felix
R., supra, 147 Conn. App. 228–29. With respect to the
third and fifth factors, as the Appellate Court recog-
nized, the impropriety was limited to closing argument
and no curative measures were taken because the
defendant raised no objection. Id.I am not persuaded, however, that the Appellate
Court gave due weight to the final factor, the strength
of the state’s case. The victim reported the defendant’s
abuse to her paternal aunt in late 2007, or early 2008,
well before the defendant alleges that he confronted
the victim about her involvement with a boy, his claimed
motive for her May, 2009 reports of abuse to her mater-
nal aunt and guidance counselor. The victim’s mother
found the earlier accusation sufficiently credible that
she confronted him about it. Most significantly, the
defendant’s response to questioning by Detective John
Ventura of the Wallingford Police Department mani-
festly reveals the defendant’s lack of credibility and
consciousness of guilt. The defendant’s excited and
extremely nervous reaction to Ventura’s questions
about whether the defendant had purchased a preg-
nancy test and ‘‘morning after’’ pill for the victim, and
his false answers to those questions, was reflective of
guilt. No reasonable jury would find credible the defen-
dant’s subsequent admission to Ventura that he had lied
about such matters when being investigated for abuse
because he was embarrassed that the victim was having
unprotected sex. Indeed, the defendant was not too
embarrassed to level that same accusation against the
victim when previously confronted by social workers
with the Department of Children and Families. There-
fore, despite the fact that certain remarks during closing
argument were clearly egregious, I am compelled to
conclude that there was not a reasonable likelihood
that the jury’s verdict would have been different absent
the improper remarks, in light of the defendant’s own
conduct, the constancy of accusation evidence, and the
victim’s testimony.3 See State v. Long, 293 Conn. 31, 37,
975 A.2d 660 (2009) (‘‘[t]he question of whether the
defendant has been prejudiced by prosecutorial [impro-
priety] . . . depends on whether there is a reasonable
likelihood that the jury’s verdict would have been differ-
ent absent the sum total of the improprieties’’ [internal
quotation marks omitted]).
Despite this conclusion, I take this opportunity to
address the significant flaw in the majority’s approach
to the question of ambiguity. ‘‘[W]hen a defendant raises
on appeal a claim that improper remarks by the prosecu-
tor deprived the defendant of his constitutional right
to a fair trial, the burden is on the defendant to show,
not only that the remarks were improper, but also that,
considered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of
due process.’’ State v. Payne, 303 Conn. 538, 562–63,
34 A.3d 370 (2012). At best, this should mean that the
defendant must demonstrate that it is more likely than
not that the remarks were improper. As such, the defen-
dant would meet his burden by showing that it is more
likely than not that the jury would have understood the
comments to intimate that the jury could or should
decide the case on the basis of improper considerations.
Thus, irrespective of whether there is a plausible con-
struction of the prosecutor’s comments that could state
a proper argument, unless that meaning is equally or
more likely to be adopted by the jury than the one
stating an improper argument, the defendant should
meet his burden of proof.
The majority takes a different tact. It concludes that
no impropriety arises when a prosecutor’s remarks
could be viewed as ambiguous, unless there is a clear
(and apparently overwhelming) pattern of such
remarks. To determine whether such an ambiguity
exists, the majority deems our rules of statutory con-
struction the proper measure. This approach raises both
substantive and pragmatic concerns.
As a substantive matter, it imposes a greater burden
on the defendant than is required. Under our rules of
statutory construction, an ambiguity arises whenever
statutory language is subject to more than one plausible
interpretation. See State v. Pond, 315 Conn. 451, 468,
108 A.3d 1083 (2015) (‘‘[b]ecause the statutory language
is subject to multiple, plausible interpretations, and it
does not expressly address or resolve the certified ques-
tion, [General Statutes] § 53a-48 [a] is facially ambigu-
ous’’); Commissioner of Correction v. Freedom of
Information Commission, 307 Conn. 53, 68, 52 A.3d
636 (2012) (‘‘[b]ecause we believe that both of these
interpretations are plausible, we conclude that the lan-
guage of the first sentence of 8 C.F.R. § 236.6 is ambigu-
ous’’); State v. Johnson, 301 Conn. 630, 650, 26 A.3d 59(2011) (‘‘[w]e conclude that, because both interpreta-
tions are plausible, the statute is ambiguous’’); State v.
Orr, 291 Conn. 642, 654, 969 A.2d 750 (2009) (‘‘our case
law is clear that ambiguity exists only if the statutory
language at issue is susceptible to more than one plausi-
ble interpretation’’). Ambiguity, as a matter of statutory
construction, does not require two or more equally
reasonable interpretations. Thus, under the majority’s
approach, any plausible construction will defeat the
defendant’s claim of impropriety, even if the defen-
dant’s interpretation is by far the more reasonable one.
In effect, the majority requires the defendant to prove
beyond a reasonable doubt that an impropriety
occurred by requiring the defendant to demonstrate
that his is the only plausible meaning of the chal-
lenged remarks.
As a practical matter, the lesser threshold for ambigu-
ity in statutory construction is inappropriate because
that question serves a different function than our inquiry
in the present case. ‘‘When presented with a question
of statutory construction, [o]ur fundamental objective
is to ascertain and give effect to the apparent intent
of the legislature.’’ (Internal quotation marks omitted.)
Desrosiers v. Diageo North America, Inc., 314 Conn.
773, 782, 105 A.3d 103 (2014). Moreover, a rule for
determining whether statutory text is ambiguous is sim-
ply intended to resolve the threshold question of
whether it is appropriate to resort to extratextual
sources to ascertain the statute’s intended meaning.
See General Statutes § 1-2z; State v. Johnson, supra,301 Conn. 650. By contrast, in considering a claim of
improper argument to the jury, we are not concerned
with what the prosecutor intended to say, but rather
the effect of those remarks on the manner in which the
jury decides the case. See State v. Paul B., 315 Conn.
19, 36, 105 A.3d 130 (2014) (‘‘[t]he fairness of the trial
and not the culpability of the prosecutor is the standard
for analyzing the constitutional due process claims of
criminal defendants alleging prosecutorial [impropri-
ety]’’ [internal quotation marks omitted]). Indeed, it is
because rules of statutory construction are intended to
address a fundamentally different concern than the one
before us that they yield a result that is inconsistent
with the proper burden of proof in this case.
The majority’s reliance on a statement by the United
States Supreme Court regarding ambiguity in prosecu-
tion argument, which previously has been cited by this
court, does not support the majority’s approach. When
considering a claimed violation of due process due to
improper prosecution argument, the United States
Supreme Court observed: ‘‘The consistent and repeated
misrepresentation of a dramatic exhibit in evidence may
profoundly impress a jury and may have a significant
impact on the jury’s deliberations. Isolated passages of
a prosecutor’s argument, billed in advance to the jury
as a matter of opinion not of evidence, do not reach
the same proportions. Such arguments, like all closing
arguments of counsel, are seldom carefully constructed
in toto before the event; improvisation frequently
results in syntax left imperfect and meaning less than
crystal clear. While these general observations in no
way justify prosecutorial misconduct, they do suggest
that a court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damag-
ing meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora
of less damaging interpretations.’’ (Emphasis added;
internal quotation marks omitted.) Donnelly v. DeCh-
ristoforo, 416 U.S. 637, 646–47, 94 S. Ct. 1868, 40 L. Ed.
2d 431 (1974). The majority relies on the emphasized
language to conclude that no impropriety will occur if
a statement is subject to more than one interpretation,
one of which is not improper. Donnelly does not stand
for such a proposition. Rather, Donnelly made clear that
the comment’s ambiguity was relevant to determining
whether the comment would have deprived the defen-
dant of a fair trial, not whether the comment was
improper. See id., 647–48 (‘‘[t]he result reached by the
[United States] Court of Appeals [for the First Circuit]
in this case leaves virtually meaningless the distinction
between ordinary trial error of a prosecutor and that
sort of egregious misconduct held . . . to amount to
a denial of constitutional due process’’ [citation omit-
ted]); see also id., 645 (‘‘[T]he prosecutor’s remark here,
admittedly an ambiguous one, was but one moment in
an extended trial and was followed by specific disap-
proving instructions. Although the process of constitu-
tional line drawing in this regard is necessarily
imprecise, we simply do not believe that this incident
made [the] respondent’s trial so fundamentally unfair
as to deny him due process.’’); id., 648 n.23 (‘‘We do
not, by this decision, in any way condone prosecutorial
misconduct, and we believe that trial courts, by admoni-
tion and instruction, and appellate courts, by proper
exercise of their supervisory power, will continue to
discourage it. We only say that, in the circumstances
of the case, no prejudice amounting to a denial of consti-
tutional due process was shown.’’). The court focused
on the due process issue even though the defendant’s
interpretation, while plausible, had been viewed by
lower courts as speculative and illogical. See id., 643–45.
Federal courts have since typically relied on Donnelly
in making a determination of whether ambiguous prose-
cution argument deprived the defendant of a fair trial.
See, e.g., Littlejohn v. Trammell, 704 F.3d 817, 837–38
(10th Cir. 2013); United States v. Nicolo, 421 Fed. Appx.
57, 62 (2d Cir.), cert. denied, U.S. , 132 S. Ct.
338, 181 L. Ed. 2d 212 (2011); Hein v. Sullivan, 601
F.3d 897, 916 (9th Cir. 2010), cert. denied, U.S. ,
131 S. Ct. 2093, 179 L. Ed. 2d 890 (2011); United States
v. Two Elk, 536 F.3d 890, 907 (8th Cir. 2008); but see
United States v. Stinefast, 724 F.3d 925, 930 (7th Cir.
2013) (‘‘[g]iven that the comments at issue are ambigu-
ous at best, we are not inclined to find that the prosecu-
tor’s statement was clearly improper’’); United States
v. Rollness, 320 Fed. Appx. 797, 798 (9th Cir.) (‘‘[t]he
first [challenged] statement is ambiguous when consid-
ered in context, and therefore does not rise to the level
of misconduct’’), cert. denied, 558 U.S. 956, 130 S. Ct.
445, 175 L. Ed. 2d 287 (2009).
Although this court has cited Donnelly in connection
with a determination of whether any impropriety
occurred, we have relied on it to reject a damaging
interpretation that was not reasonably likely to be
adopted by the jury. See State v. Ciullo, 314 Conn. 28,
48, 100 A.3d 779 (2014) (concluding that prosecutor’s
isolated comment, in context, would not have been
reasonably construed as denigrating defense counsel);
State v. Warholic, 278 Conn. 354, 367–68, 897 A.2d 569(2006) (concluding that prosecutor’s statement was
argument for reasonable inference that jury could have
drawn from evidence adduced at trial, rather than state-
ment of prosecutor’s personal opinion about defen-
dant’s guilt, because ‘‘[w]hen the statement is read in
context, the prosecutor’s assertion was based on the
evidence regarding the behavioral patterns of sexually
abused children and [the complainant’s] own testimony
of the sexual assaults’’); State v. Reynolds, 264 Conn.
1, 186 and n.166, 836 A.2d 224 (2003) (concluding that,
‘‘[a]lthough we acknowledge that the argument of the
state’s attorney on this point was not a model of clarity,
we are not persuaded that the jury was likely to have
understood it as the defendant contends’’), cert. denied,
541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004);
State v. Haase, 243 Conn. 324, 335–36, 702 A.2d 1187(1997) (concluding that defendant’s interpretation was
not one that jury naturally and necessarily would have
adopted because it was speculative and lacking context,
whereas state’s proper purpose was ‘‘apparent’’ and
made clear by assistant state’s attorney’s prompt
response to defendant’s objection), cert. denied, 523
U.S. 1111, 118 S. Ct. 1685, 140 L. Ed. 2d 822 (1998);
State v. Marra, 222 Conn. 506, 533–35, 610 A.2d 1113(1992) (This court concluded that the challenged state-
ments ‘‘plainly’’ concerned a matter different than the
defendant’s failure to testify, and that, ‘‘[a]lthough it is
possible that the jury drew [an improper] conclusion,
such a strained interpretation of the state’s argument
by the jury would be neither necessary nor natural.
. . . We believe the challenged remarks on rebuttal
could only be reasonably interpreted as commentary by
the prosecutor on the overall quality of the defendant’s
evidence and not as calling specific attention to the
failure of the accused to testify.’’ [Citations omitted;
internal quotation marks omitted.]); State v. Negron,
221 Conn. 315, 325, 603 A.2d 1138 (1992) (This court
concluded ‘‘that the prosecutor’s remarks would rea-
sonably have been interpreted by the jury, not as a
comment on the defendant’s failure to testify, but rather
to have been an observation that the defendant, who
knew what had happened, had informed three others
that he had shot someone . . . that the three in turn
had testified as to what they had been told, and that the
jury, therefore, had for its consideration the defendant’s
own account of what had transpired. That, indeed,
appears to be the more cogent construction to be attrib-
uted to the prosecutor’s argument.’’).4 Thus, Donnelly
does not support the majority’s approach in the pre-
sent case.
The question, therefore, is what is the proper
approach when a prosecutor’s remarks are susceptible
to more than one interpretation, one of which is
improper. For the reasons previously stated, the inquiry
must focus on the jury’s perception of the remarks and
not the prosecutor’s intention in making them. More-
over, the interpretation must be more than simply plau-
sible, but one that the jury is reasonably likely to adopt.
At the two polar extremes—where the jury clearly is
unlikely or likely to adopt one interpretation—the issue
of impropriety is readily determined. In between these
polar extremes are cases in which there is more than
one reasonable interpretation. In such cases, it is rea-
sonably possible that the jury understood the remark
to encourage it to decide the case on an improper basis.
Although the defendant bears the burden of proving
that it is more likely than not that an impropriety
occurred, for the reasons that follow, I would assume
impropriety in such cases and address the effect of
the ambiguity in the second step in our prosecutorial
impropriety analysis. See State v. Taft, 306 Conn. 749,
762, 51 A.3d 988 (2012) (two step analytical process
considers ‘‘[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 omitted]). By deeming
remarks proper that reasonably could be understood
by the jury as advancing an improper argument, we
would encourage prosecutors to couch argument in
ambiguous language to avoid admonishment, without
reducing the risk that the jury may have interpreted
the comments as directing it to decide the case on an
improper basis. Because ‘‘[t]he prosecutor, as a repre-
sentative of the state, has a duty of fairness that exceeds
that of other advocates’’; (internal quotation marks
omitted) State v. Payne, 260 Conn. 446, 452, 797 A.2d
1088 (2002); we should deem argument improper when
it is crafted in terms that are readily susceptible to
misinterpretation for an improper purpose. Indeed,
when argument is equally likely to be interpreted in a
damaging way as a proper way, the defendant may not
have met his burden of proof, but such argument should
not be characterized as proper. By deeming such ambig-
uous comments improper, we put the prosecutor on
notice that a pattern of such obfuscation, even if insuffi-
cient to give rise to grounds for reversal on due process
grounds in a particular case, could constitute grounds
for reversal under the exercise of our supervisory
authority in the future. See, e.g., id., 450–52.
In considering whether a due process violation has
occurred, it makes sense to consider the nature of the
ambiguity (plausibly, reasonably, or likely to be under-
stood in damaging way) in connection with factors
addressing the frequency and severity of the impropri-
ety, as well as the effect of curative instructions. See,
e.g., Muhammad v. McNeil, 352 Fed. Appx. 371, 375–76
(11th Cir. 2009) (stating in connection with second step
in prosecutorial impropriety analysis: ‘‘[i]n determining
whether arguments are sufficiently egregious to result
in the denial of due process, we consider factors includ-
ing: [1] whether the remarks were isolated, ambiguous,
or unintentional; [2] whether there was a contempora-
neous objection by defense counsel; [3] the trial court’s
instructions; and [4] the weight of aggravating and miti-
gating factors’’ [emphasis added; internal quotation
marks omitted]), cert. denied, 559 U.S. 1052, 130 S. Ct.
2350, 176 L. Ed. 2d 568 (2010); United States v. Cabal-
lero, 277 F.3d 1235, 1245 (10th Cir. 2002) (concluding
in due process analysis that ‘‘we find it unlikely that
the prosecutor’s single, ambiguous remark substantially
influenced the jury in light of the overwhelming evi-
dence presented against the [defendants]’’). Under such
a framework, a determination of whether the ambigu-
ous remarks were frequent would properly focus on the
likely effect of the remarks instead of the prosecutor’s
intention in making them. Moreover, curative instruc-
tions would be relevant to whether any ambiguity was
sufficiently dispelled. Although analyzing ambiguity
under either step of our analysis likely would yield the
same result, because the defendant still must prove that
it is more likely than not that the jury adopted the
adverse interpretation, I am persuaded that analyzing
all but the most obvious cases under the second step
is most faithful to vindicating due process concerns.
In the present case, however, Pepper’s remarks
clearly were improper, but did not deprive the defen-
dant of a fair trial. Accordingly, I join the majority only
insofar as it reverses the judgment of the Appellate
Court reversing the defendant’s judgment of conviction.
I respectfully concur.
1
In addition to a comment referring to matters not in evidence, which
the majority agrees was improper, most significantly, Pepper stated that
since the day the victim confided in her guidance counselor, the victim has
‘‘been in foster care, but that didn’t end the trauma, ladies and gentlemen.
She was interviewed by strangers. She was poked and prodded by doctors
and nurses. She had a miscarriage. And she had to relive the whole experience
here, facing you and the defendant, and telling you what happened to her
over the period of four years. And she had to recite to you who she had
sex with and who she hasn’t, because of what that man did to her and said
about her during the investigation of this case. I had to ask her . . . did
you ever post a photograph of yourself on the web with a penis in your
face? I had to ask her that question in front of strangers, because of what
that man said and did to her.’’ (Emphasis added.)
In rebuttal argument, Pepper gave his personal opinion about the defen-
dant’s guilt when he further stated: ‘‘Every time he slandered her, we find
out it’s not true. Why? Why this campaign of disinformation against his
daughter? Well, I submit, ladies and gentlemen, what would you expect from
someone who molests a twelve year old, even your own daughter? I submit,
ladies and gentlemen, he was trying to deceive and deflect the investigation
of this case from the very beginning.’’ (Emphasis added.)
2
See State v. Ceballos, 266 Conn. 364, 367, 832 A.2d 14 (2003) (reversing
judgment on due process grounds due to improper conduct by Pepper during
questioning of witnesses and closing argument); State v. Payne, 260 Conn.
446, 447–49, 797 A.2d 1088 (2002) (reversing judgment under supervisory
authority due to improper comments by Pepper during closing argument);
State v. Butler, 255 Conn. 828, 829–30, 769 A.2d 697 (2001) (affirming Appel-
late Court’s judgment reversing conviction on due process grounds due to
improper comments by Pepper during closing argument); see also State v.
Moody, 77 Conn. App. 197, 217–18, 822 A.2d 990 (concluding that Pepper
improperly asked defendant to comment on veracity of other witnesses but
concluding that impropriety did not deprive defendant of fair trial), cert.
denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct.
831, 157 L. Ed. 2d 714 (2003); State v. Lacks, 58 Conn. App. 412, 422–24,
755 A.2d 254 (recognizing that Pepper improperly commented on credibility
of witnesses in closing argument but concluding that remarks were not so
pervasive or egregious to have violated defendant’s right to fair trial), cert.
denied, 254 Conn. 919, 759 A.2d 1026 (2000).
3
In its responsive brief to this court, the defendant summarily suggests
that this court could affirm the Appellate Court’s judgment reversing the
defendant’s conviction on the alternative basis of this court’s supervisory
authority. The defendant did not file a statement of an alternative ground
for affirmance, and the state did not have notice to address this claim in
its main brief. Therefore, I decline to address whether reversal is warranted
on this alternative ground. Had such a claim been raised and adequately
briefed, the past history of the senior assistant state’s attorney may have
weighed heavily in favor of the exercise of such authority.
4
To address the specific concern of whether the prosecutor improperly
has commented on the defendant’s failure to testify versus whether the
prosecutor has properly and reasonably commented on the defendant’s
failure to rebut the state’s evidence, courts have adopted the following
standard: ‘‘In determining whether a prosecutor’s comments have
encroached upon a defendant’s right to remain silent, we ask: Was the
language used manifestly intended to be, or was it of such character that
the jury would naturally and necessarily take it to be a comment on the
failure of the accused to testify?’’ (Internal quotation marks omitted.) State
v. Ruffin, 316 Conn. 20, 29, 110 A.3d 1225 (2015). The ‘‘naturally and necessar-
ily’’ standard has been limited to this particular concern and not extended
to other alleged impropriety in argument. See, e.g., State v. Grant, 286 Conn.
499, 537–47, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L.
Ed. 2d 200 (2008); State v. Rowe, 279 Conn. 139, 144–61, 900 A.2d 1276(2006); State v. Satchwell, 244 Conn. 547, 563–72, 710 A.2d 1348 (1998); State
v. Crump, 145 Conn. App. 749, 754–61, 75 A.3d 758, cert. denied, 310 Conn.
947, 80 A.3d 906 (2013); State v. Johnson, 107 Conn. App. 188, 199–202, 944
A.2d 416, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008); State v. Palmer,
78 Conn. App. 418, 423–28, 826 A.2d 1253, cert. denied, 266 Conn. 913, 833
A.2d 465 (2003).