State v. Albert D. ( 2020 )

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STATE OF CONNECTICUT v. ALBERT D.*
(AC 42745)
Alvord, Moll and Bishop, Js.
Syllabus
Convicted, after a jury trial, of six counts of risk of injury to a child, three
counts of sexual assault in the fourth degree, two counts of sexual
assault in the first degree, and one count of attempt to commit sexual
assault in the first degree, the defendant appealed to this court. He
claimed that he was entitled to a new trial on the basis of alleged
prosecutorial improprieties during the state’s rebuttal closing argument
which resulted in a denial of his due process right to a fair trial pursuant
to the six factor test set forth in State v. Williams (204 Conn. 523). Held:
1. The prosecutor’s remarks on her own credibility and the credibility of one
of the state’s witnesses in rebuttal closing argument did not constitute
improper vouching for the state’s credibility: the state’s response was
reasonable in light of the defendant’s sharp comments in closing argu-
ment, and the prosecutor also stated, on numerous occasions throughout
her rebuttal argument, that it was the jury’s job to assess credibility;
moreover, the prosecutor’s comments were directly tied to the defense’s
interpretation of the evidence adduced at trial and did not improperly
extend beyond the record.
2. The prosecutor’s comments in rebuttal closing argument that the state’s
experts were not allowed, as a matter of law, to meet with the victims
were improper and constituted an impropriety, as our law does not
prohibit expert witnesses from meeting with children who are complain-
ants of sexual assault: the prosecutor explicitly stated that the state’s
experts could not meet with the victims because doing so would usurp
the jury’s role in assessing credibility and, although the state correctly
articulated that the experts could speak about the behavioral characteris-
tics of child abuse victims only in general terms, such a principle is
rooted in our courts’ concern for improper vouching, and is not borne
out of a rule precluding experts from meeting with complainants of
sexual assault; moreover, the prosecutor’s comments explicitly mis-
stated the law and, although they may have been intertwined with proper
remarks relating to the jury’s role in assessing credibility, the jury likely
could have misunderstood that the reason for the experts’ general testi-
mony was because of their purported inability under the law to meet
with the victims.
3. The defendant was not deprived of his due process right to a fair trial
even though a prosecutorial impropriety occurred; under the six factor
test set forth in Williams, the trial, as a whole, was not fundamentally
unfair and the impropriety did not so infect the trial with unfairness as
to make the defendant’s convictions a denial of due process, as the
defense initially argued that one of the state’s experts was precluded
from meeting with the victims, the severity of the impropriety was
lessened by the fact that the defendant did not object to the state’s
closing argument, the prosecutor’s misstatement of the law was not
frequent and was confined to rebuttal argument, the impact of the
impropriety was minimal as the jury acquitted the defendant of two
counts, demonstrating its ability to filter out improper statements and
make independent assessments of credibility, any improper effect was
reduced by the court’s final instructions to the jury following closing
arguments, and the state’s case was fairly strong, even without physi-
cal evidence.
Argued November 21, 2019—officially released March 3, 2020
Procedural History
Substitute information, in one case, charging the
defendant, with six counts of the crime of risk of injury
to a child, three counts of the crime of sexual assault
in the first degree, two counts of sexual assault in the
fourth degree, and one count of the crime of attempt to
commit sexual assault in the first degree, and substitute
information, in a second case, charging the defendant
with the crimes of sexual assault in the fourth degree
and risk of injury to a child, brought to the Superior
Court in the judicial district of Tolland, where the cases
were consolidated and tried to the jury before Seeley,
J.; verdict and judgment of guilty in the first case of
five counts of risk of injury to a child, two counts each
of sexual assault in the first degree and sexual assault in
the fourth degree, and one count of attempt to commit
sexual assault in the first degree, and, in the second
case, verdict and judgment of guilty, from which the
defendant appealed to this court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and, Elizabeth C. Leaming, senior
assistant state’s attorney, for the appellee (state).
Opinion
MOLL, J. The defendant, Albert D., appeals from the
judgments of conviction, rendered following a jury trial,
of two counts of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (2),1 one count
of attempt to commit sexual assault in the first degree
in violation of General Statutes §§ 53a-49 (a)2 and 53a-
70 (a) (2), three counts of sexual assault in the fourth
degree in violation of General Statutes § 53a-73a (a) (1)
(A),3 and six counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2).4 On appeal, the
defendant claims that he is entitled to a new trial on
the basis of alleged prosecutorial improprieties during
the state’s rebuttal closing argument. Specifically, the
defendant contends that the prosecutor (1) incorrectly
stated that the state’s experts were not allowed to meet
with the victims, and (2) improperly vouched for her
own credibility and the credibility of one of the state’s
witnesses. The defendant further argues that the impro-
prieties resulted in a denial of his due process right to
a fair trial pursuant to the six factor test set forth in
State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987). We conclude that the prosecutor’s comments
with regard to the purported inability of the state’s
experts to meet with the victims constituted an impro-
priety that, nevertheless, did not deprive the defendant
of his due process right to a fair trial. We further con-
clude that the prosecutor’s comments with respect to
her own credibility and the credibility of one of the
state’s witnesses were not improper. Accordingly, we
affirm the judgments of conviction.
The jury reasonably could have found the following
facts. Sometime in 2003, the victims, T and A, and their
parents moved into a house in Willington. T is A’s older
sister. T was in second grade and approximately eight
years old. The defendant and his wife, who are the
victims’ paternal grandparents, lived in a neighboring
house.5 T saw her grandparents every day, and most
of these visits occurred at her grandparents’ home. T
testified that she would often spend time in the defen-
dant’s bedroom watching television while the defendant
slept in his bed. While T would watch television, the
defendant began to sexually abuse her by way of digital
anal penetration. T testified that A, who had a particu-
larly close relationship with the defendant’s wife, would
also be at the defendant’s home, yet would remain
downstairs during these episodes. T further testified
that this sexual abuse would occur ‘‘[v]ery often’’ and
‘‘almost every time’’ that she would visit her grandpar-
ents’ home, from the time she began second grade in
2003 until prior to the beginning of sixth grade, when
her family moved to North Carolina in 2007.6 In addition,
T described several other forms of sexual abuse perpe-
trated by the defendant. Each of those abuses occurred
one time.
In 2005 or 2006, when A was eight or nine years old,
she was watching television in the defendant’s bedroom
while the defendant appeared to be sleeping next to
her on the bed. The defendant then lifted her shirt and
proceeded to touch her breasts. A maintained that this
occurrence was the only instance of abuse she suffered
from the defendant. The defendant did not abuse T or
A once they returned from North Carolina.
On July 14, 2015, T disclosed to her father that she
had been sexually abused by the defendant. Her father
drove to the defendant’s residence and confronted the
defendant about the accusation. Patrick O’Brien, a
patrol trooper with the Connecticut State Police,
responded to the defendant’s home as a result of the
defendant’s call to the police, indicating that he had
been accosted by the victims’ father, who had accused
the defendant of sexually assaulting T. In order to inves-
tigate further, Trooper O’Brien proceeded to the vic-
tims’ residence, which was approximately twenty or
thirty minutes away. Once there, Trooper O’Brien spoke
with both victims but did not record a statement at
that time.7
Scott Crevier, a detective with the Connecticut State
Police, took written statements from T and A on July
15, 2015. T explained that she believed the abuse began
in 2001. On August 10, 2015, T provided a second state-
ment wherein she stated that the abuse actually began
in 2003. Detective Crevier also interviewed the defen-
dant and his wife on two occasions in August and Sep-
tember, 2015. In his two statements, the defendant
explained that during ‘‘several strange incidents,’’ T had
initiated inappropriate sexual contact with him while
he was napping in his bedroom, and he confirmed that
he never told anyone about them.8 The defendant was
later arrested pursuant to two arrest warrants.
By way of amended substitute informations, the state
charged the defendant in two separate informations9
with respect to the abuse of his granddaughters. With
regard to T, the operative information charged the
defendant with three counts of sexual assault in the
first degree, one count of attempted sexual assault in
the first degree, two counts of sexual assault in the
fourth degree, and six counts of risk of injury to a child.
With regard to A, the operative information charged
the defendant with one count of sexual assault in the
fourth degree and one count of risk of injury to a child.
The defendant pleaded not guilty to all counts and
elected to be tried by a jury.
On November 3, 2017, following a jury trial, the defen-
dant was convicted of all counts charged with respect
to T, with the exception of one count of sexual assault
in the first degree and one count of risk of injury to a
child, and both counts charged with respect to A. On
March 6, 2018, the court imposed a total effective sen-
tence of twenty-five years of incarceration, followed by
ten years of special parole with a lifetime sex offender
registration. This appeal followed. Additional facts will
be provided as necessary.
On appeal, the defendant’s sole claim relates to two
instances of purported prosecutorial impropriety dur-
ing the state’s rebuttal closing argument, which he con-
cedes were not objected to at trial. We first set forth
the standard of review and the general principles of
law applicable to claims of prosecutorial impropriety.
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. . . . [W]hen a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show . . .
that the remarks were improper . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Taft,
306 Conn. 749, 761–62, 51 A.3d 988 (2012). ‘‘Once prose-
cutorial impropriety has been alleged . . . it is unnec-
essary for a defendant to seek to prevail under State
v. Golding, [213 Conn. 233, 239–40, 567 A.2d 823 (1989)],
and it is unnecessary for an appellate court to review
the defendant’s claim under Golding. . . . The reason
for this is that the touchstone for appellate review of
claims of prosecutorial [impropriety] is a determination
of whether the defendant was deprived of his right to
a fair trial, and this determination must involve the
application of the factors set out by this court in [Wil-
liams].’’ (Internal quotation marks omitted.) State v.
King, 289 Conn. 496, 509–10, 958 A.2d 731 (2008).
If we conclude that prosecutorial impropriety
occurred, we then decide whether the defendant was
deprived of his due process right to a fair trial by consid-
ering ‘‘[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 [impro-
priety] to the critical issues in the case . . . [5] the
strength of the curative measures adopted . . . and [6]
the strength of the state’s case.’’ (Citations omitted.)
State v. Williams, supra, 204 Conn. 540. ‘‘As is evident
upon review of these factors, it is not the prosecutor’s
conduct alone that guides our inquiry, but, rather, the
fairness of the trial as a whole. . . . In addition, the
fact that the defendant did not object to the remarks
at trial is part of our consideration of whether a new
trial or proceeding is warranted . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Weath-
erspoon, 332 Conn. 531, 556–57, 212 A.3d 208 (2019).
I
A
The defendant first argues that the prosecutor com-
mitted an impropriety in her rebuttal closing argument
by arguing that the state’s experts were not allowed as
a matter of law to meet with the victims. In response,
the state contends that the statements at issue must
be viewed in the context in which they were made.
According to the state, that context makes clear that
the prosecutor was simply explaining why the experts
must testify in general terms and why their generali-
zations were still relevant to the case. We agree with
the defendant that the prosecutor’s statements that the
state’s experts were not allowed as a matter of law to
meet with the victims constituted an impropriety.
The following additional facts are relevant to our
analysis. During the trial, the state presented the tes-
timony of two experts. First, Lisa Murphy-Cipolla, a
clinical services coordinator at the Greater Hartford
Children’s Advocacy Center, testified that she had con-
ducted approximately 1900 diagnostic interviews with
children who claimed to be abused. She testified that
there was ‘‘general agreement in the field that disclo-
sures [of sexual abuse] are usually delayed.’’ She further
opined on the reasons for the delayed disclosure. Mur-
phy-Cipolla did not interview either T or A, and she
acknowledged that her opinions were generalizations.
Second, Dr. Nina Livingston testified as an expert pedia-
trician in the field of child abuse and neglect. She testi-
fied that, in her experience, children often delayed dis-
closing sexual abuse. She also explained why children
who suffer from sexual abuse akin to that allegedly
suffered by the victims in the present case often do not
show physical symptoms. She did not examine T or A.
During closing arguments, defense counsel argued in
relevant part: ‘‘So the expert’s testimony is all general-
izations. She never saw [T] and she never saw [A]. And
yet, she can’t testify in specifics about either one of
these girls, not because she not only didn’t see them
because she’s not allowed to, but it’s all generalizations.
And so to say oh, well, she didn’t tell because nobody
responds to her. And she didn’t tell because of this,
and she should tell at this point in her time. It’s all
generalization. So the expert’s testimony, give it the
credit that you want to give it, but it’s not specific to
either one of these girls here.’’ Defense counsel later
argued: ‘‘Finally, the experts. Eh, they are what they
are. They’re not a good—talk in generalizations. Take
them for what they’re worth. They didn’t see [T]. They
didn’t see [A]. The doctor, the doctor’s useless. She
was a nice woman, very smart, went to Harvard. She
explained to you what the vagina is, and she told you
that there would be no injury. But we didn’t expect to
see any injury [ten] years later, so that’s not news to
anybody, not you guys, nobody.’’
In the state’s rebuttal closing argument, the prosecu-
tor made the following remarks: ‘‘I don’t think we can
throw our hands up and say, eh, the experts. Yeah,
they’re useless. What do they really tell us? They talk
in generalities. Well as you’ll hear the judge instruct
you, we have to talk in generalities. These, these experts
can’t come and meet with our complainants. It’s not
proper. It usurps your role as a juror. It’s your decision
as to what to believe and who to believe and who gets
credibility. So it’d be improper to have an expert speak
to that persons or people specifically. So the law only
allows us to bring in experts to talk about the dynamics
of child sexual abuse in generalities.’’ The defendant
specifically takes issue with the prosecutor’s comment
that ‘‘these experts can’t come and meet with our com-
plainants. It’s not proper.’’
In State v. Spigarolo, 210 Conn. 359, 380, 556 A.2d
112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L.
Ed. 2d 312 (1989), our Supreme Court held that, ‘‘where
defense counsel has sought to impeach the credibility
of a complaining minor witness in a sexual abuse case,
based on inconsistency, incompleteness or recantation
of the victim’s disclosures pertaining to the alleged inci-
dents, the state may offer expert testimony that seeks to
demonstrate or explain in general terms the behavioral
characteristics of child abuse victims in disclosing
alleged incidents.’’ ‘‘Our cases following Spigarolo con-
tinue to recognize the value of generalized expert testi-
mony to explain to the jury what might seem to the
layperson to be atypical behavior exhibited by victims
of various kinds of assaults, so long as that opinion
testimony does not directly vouch for their credibility
or veracity. . . . Subsequent case law has, however,
emphasized the danger of an expert witness, particu-
larly one who has treated or evaluated a complainant,
vouching indirectly for that complainant’s credibility as
well.’’ (Citations omitted; emphasis altered.) State v.
Favoccia, 306 Conn. 770, 788, 51 A.3d 1002 (2012).
Notably, the state does not attempt to argue on appeal
that expert witnesses in child sexual assault cases are
prohibited as a matter of law from meeting with the
complainants. Indeed, our law contains no such prohibi-
tion. Instead, the state contends that the prosecutor’s
remarks, when viewed in context, correctly stated that
the experts could not vouch for the victims’ credibility.10
We do not agree with this characterization. The prose-
cutor explicitly stated that the state’s experts could not
meet with the victims because doing so would usurp
the jury’s role in assessing credibility. Although the state
correctly articulated that the experts could speak about
the behavioral characteristics of child abuse victims
only in general terms, such a principle is rooted in our
courts’ concern for improper vouching, and not borne
out of a rule precluding the experts from meeting with
the complainants of sexual assault.
The state relies on State v. Frasier, 169 Conn. App.
500, 519, 150 A.3d 1176 (2016), cert. denied, 324 Conn.
912, 153 A.3d 653 (2017), in support of its position that
the prosecutor did not misstate the law. In Frasier, the
prosecutor, during his closing arguments, argued that
he was unsure what the defendant’s theory of defense
was. Id., 516–17. Throughout his arguments, the prose-
cutor repeatedly reminded the jury that the state bore
the burden of proof. Id., 517. On appeal, the defendant
argued that the state committed an impropriety when
it ‘‘unfairly shifted’’ the burden of proof to the defendant
by arguing that the defendant needed to produce a
‘‘successful theory of defense for the jury . . . .’’ (Inter-
nal quotation marks omitted.) Id., 516–17. This court
disagreed, concluding that ‘‘it [was] unlikely the jury
would have understood the argument in the manner
claimed by the defendant.’’ Id., 519. Specifically, ‘‘the
prosecutor speculated what the defendant might argue
on his closing argument and questioned the plausibility
of the defendant’s arguments.’’ Id.
The state’s reliance on Frasier is misplaced. In Fra-
sier, the state did not imply that the defendant needed,
as a matter of law, to raise a defense; rather, it ques-
tioned the viability of the defense presented. Id. In con-
trast, the prosecutor in the present case expressly
stated that ‘‘experts can’t come and meet with our com-
plainants. It’s not proper. It usurps your role as a juror.
It’s your decision as to what to believe and who to
believe and who gets credibility. So it’d be improper
to have an expert speak to that persons or people specif-
ically.’’ (Emphasis added.) Unlike the comments made
in Frasier, which the defendant unsuccessfully argued
had implicitly misstated the law, the comments in the
present case explicitly misstated the law. While the
remarks may have been intertwined with proper
remarks relating to the jury’s role in assessing credibil-
ity, we are persuaded that the jury likely could have
misunderstood the reason for the experts’ general testi-
mony to be a function of their purported inability under
the law to meet with T or A. Because ‘‘prosecutors are
not permitted to misstate the law’’; State v. Otto, 305
Conn. 51, 77, 43 A.3d 629 (2012); and our law does not
prohibit expert witnesses from meeting with children
who are complainants of sexual assault, the state’s com-
ments in closing arguments to the contrary were
improper. Having found prosecutorial impropriety, we
set forth our analysis of the Williams factors in part II
of this opinion.
B
The defendant also claims that it was improper for
the prosecutor to remark on her own credibility and
the credibility of one of the state’s witnesses. The state
argues that these statements were proper responses,
tied to evidence in the record, to defense counsel’s
closing argument which essentially accused the prose-
cutor of putting words in T’s mouth and Detective Crev-
ier of putting falsehoods in the witnesses’ statements.
We agree with the state.
The following additional facts are relevant. On direct
examination, the following exchange occurred between
the state and T:
‘‘Q. Do you recall, [T], giving a statement to the police
ultimately about these events in your early childhood
back in July and August of 2015?
‘‘A. Yes, I do.
‘‘Q. And when you were interviewed by the [state]
police, were you asked to estimate your age when these
different sexual acts occurred?
‘‘A. Yes.
‘‘Q. Were you also asked to provide dates and years
that these acts occurred?
‘‘A. Yes, I was.
***
‘‘Q. Okay. So initially what age did you believe that
this began?
‘‘A. Between the ages of five and six.
‘‘Q. And from there you did the math to figure out
the year?
‘‘A. Yes.
‘‘Q. And what year did you provide them?
‘‘A. 2001.
‘‘Q. And when did you indicate to them that you
believed it ended?
‘‘A. When I turned ten.
***
‘‘Q. Did there come a point in time when you realized
that those were not accurate ages, either the start time
or the end time?
‘‘A. Yes, I did.
‘‘Q. And how was it that you came to realize that?
‘‘A. I realized it when I thought back and remembered
that it had happened when I was in second grade which
puts me a little bit older.
‘‘Q. Okay. In fact when—did you report that to me
that you remembered being in second grade?
‘‘A. Yes, I did.
***
‘‘Q. Are you confident in your testimony today that
the abuse had began when you moved to Willington
and started second grade?
‘‘A. Yes, I am.
‘‘Q. And that it concluded when you moved to
North Carolina?
‘‘A. Yes.’’
Thereafter, the state called Detective Crevier to tes-
tify with respect to his interviews of the victims and
the defendant. During direct examination by the prose-
cutor, Detective Crevier testified about his interview
procedure as follows:
‘‘Q. [W]hat is your normal procedure when inter-
viewing a complainant of sexual assault? Do you type
as they speak to you, or do you have a conversation
with them and then reduce it to writing afterward?
‘‘A. Me, personally, I would interview them first,
would gain the particulars of the events, the situation,
the who, what, when, where, and then I would transpose
that into a written statement on the computer,
reviewing it at times if I have to with the complainant.
And ultimately my partner or whoever else is sitting in
with us would obviously bring up some reminders if
we had to add anything in as well the complainant at
the time.’’
Defense counsel elicited the following testimony
from Detective Crevier with respect to T’s statements
on cross-examination:
‘‘Q. Okay. So it’s not her recollection that she just
says, oh this took place in 2001, I know I was five, and
you accept that. You say, sure it wasn’t your birthday
or you sure it wasn’t summer or could it have been fall.
You, you sort of ask those kind of questions.
‘‘A. If, if there’s any discrepancies on any time frames,
we would try to narrow it down—
‘‘Q. Okay.
‘‘A. —to a specific timeframe or year or class, age,
what have you.
‘‘Q. Okay. If there was a problem with say the statute
of limitations in 2001, would you want to change that
date so that it would happen in 2003?
‘‘A. No.
‘‘Q. Okay. But she initially told you it took place in
2001, and that’s in her statement. Correct?
‘‘A. I believe so, correct.
‘‘Q. All right. And then—
‘‘A. Began in 2001.
***
‘‘Q. [T] comes back and gives you another statement
on August 10, 2015 and says that she believes that she
was some of these instances probably took place in
2003.
‘‘A. Correct. . . .
***
‘‘Q. Now, when you’re talking to her, is she telling
you—and again, this is not her speaking to you and you
typing verbatim what she’s saying. This is a back and
forth and coming to conclusions or coming to a some-
thing that is either suggested or that, that triggers her
memory and then she says, yeah that sounds right, and
then it’s put into the statement as she agrees with it.
‘‘A. The interview would be back and forth, and then
as I’m typing it I might review it a little bit with her.
And if there’s any concern that I want to clarify, I’ll, I’ll
turn back to her and go over what we went over for
just so I know it’s correct. And then we would do the
same at the end too and after, as well as when we print
it up and she reads it all, so.
‘‘Q. Okay.
‘‘A. So it, it could change several times, yes.
‘‘Q. And—
‘‘A. Or additions could be made.’’
Detective Crevier also testified on cross-examination
with respect to his interview of the defendant as
follows:
‘‘Q. So you, you then tell [the defendant] that when
this is done that he has time to read this report and
are these his, is this his statement.
‘‘A. Correct.
‘‘Q. Correct?
‘‘A. Correct. There’s anything he wants to change, I
make note of it. We’ll go back in and change it and
everything like that.
‘‘Q. But it’s not his statement. These are not his words.
These are your words.
‘‘A. Correct.
‘‘Q. Okay.
‘‘A. Correct.
‘‘Q. So—
‘‘A. We don’t, we don’t let anybody type out a
statement.
‘‘Q. All right. Or to handwrite a statement?
‘‘A. They may handwrite, come in, and then we may
type it and, and tweak it some and everything like—
it’s been done like that before unless they have an
affidavit signed by a notary or something in previous
cases.
‘‘Q. So you tweak it. You change it.
‘‘A. We would—correct. We make sure it fits the ele-
ments of the crimes and to add things in there to the
events we’re looking into and to our knowledge of
the situation.
‘‘Q. So you tweak it so that it fits what would fit the
elements of the crime.
‘‘A. Well, no. We would, we would, we would type it
so that it is consistent to what we spoke about.
‘‘Q. Okay.
‘‘A. His—during his interview.
‘‘Q. Okay.
‘‘A. I mean, we’re not putting in any, anything that
wasn’t spoken about or anything like that.
‘‘Q. But I think you just said we would tweak it to
fit the elements of the crime.
‘‘A. Well, obviously, if I want to know how many
times an incident happened, I’d have to talk to the
suspect and get his possible recollection on how many
times it would happen.
‘‘Q. Okay.
‘‘A. Because then it would fit the elements of the
crime for counts and everything like that.
‘‘Q. Okay. Well counts aren’t an element of a crime.
Is it?
‘‘A. No . . . .’’
Finally, on redirect examination, Detective Crevier
testified with regard to T’s statements as follows:
‘‘Q. And in this, this particular case, you did in a
second interview with [T] help to—attempt to pinpoint
when some of those subsequent acts occurred, the ones
that were different than what was usually going on
with her.
‘‘A. Correct.
‘‘Q. And so you did do that in this case. Correct?
‘‘A. Correct.
‘‘Q. And were you always operating under the
assumption that the start date, the start time was in
2001, because she believed she was approximately five
or six years of age?
‘‘A. Correct.
‘‘Q. Did you ever try to dissuade her from that? Did
you have to explore that any further with her, or did
you always operate under that assumption?
‘‘A. She was pretty adamant that that was the date
it started.
‘‘Q. Did you ever feel the need to go further with her
to determine perhaps what grade she was in at the time?
‘‘A. No, I did not.’’
Defense counsel devoted a portion of closing argu-
ment to discrediting T’s testimony regarding the timing
of the abuse, as well as Detective Crevier’s investigatory
methods. Defense counsel argued that ‘‘[T] says she
was five. She signed a signed sworn statement. Signed
the statement saying she was five. It was the state who
told her that she was in second grade, because it’s the
only way her story made sense. The state said do you
and I have a chance to talk to each other. Does, did
that remind you? Did that make you remember that you
would go to second grade? Yes. So you must’ve been
eight as you were living with your grandfather. That’s
the only way the story makes sense.’’
Defense counsel further argued: ‘‘And then [Detective
Crevier] said a couple of other really interesting things.
When I asked is this, is this [the defendant’s] statement
or is this statement yours, he said that’s mine. It’s mine.
. . . That’s beyond—that’s unconscionable. This is a
signed, sworn statement, something that a person sup-
posedly giving to you to account for an event. And when
a person that’s a suspect, your prime suspect in a case
who’s going to be arrested based on his statement,
comes to you, and you say—use your words instead of
his and [then] have him sign it. That’s almost criminal,
almost. Then, on top of it, he said well, we tweaked
his statements, I tweaked the statements to fit the ele-
ment of the crime. I tweak the statements to fit the
element of the crime? Really? So if the guy’s not giving
you the right answer, you’re going to put it in there.
. . .’’ Defense counsel continued: ‘‘[Detective Crevier]
is skilled. He has taken how many courses. He’s been
a—he’s been a detective for twenty years. Twenty years,
he’s never made a mistake. That’s because he’s skilled
at interviewing, getting confessions, getting people to
tell him what he really wants to hear, tweaking those
confessions, tweaking those statements, taking those
advanced, advanced interviewing technique classes that
he says he’s taken so many of. Oh he was proud to tell
us what he could do, and he did it.’’
During rebuttal argument, the prosecutor made the
following comments that the defendant claims were
improper. ‘‘I’m not quite sure I know where to begin.
. . . I’ve been accused of putting words in my wit-
nesses’ mouths. But for accusations that the state police
have put words in statements that aren’t true in order
to accomplish what they’re trying to accomplish. These
are very serious accusations, and I would submit to
you that there is no place in the evidence to support
those accusations. And frankly, I find it offensive.’’ With
respect to Detective Crevier’s interview, the prosecutor
argued: ‘‘He’s not going to write things in there like
what kind of weather it was out that day if it’s not
relevant to the crime. He’s not going to talk about erro-
neous things that aren’t related to the crimes that are
being investigated. When he says he tweaked the state-
ment to include—to fit the elements of the crime, he
means he [is] putting information in there to meet the
elements of the crime. Because that’s what we need as
state’s attorneys. Can we prove this case? Can we—do
we have sufficient evidence to meet the elements of
the crime. Because we take this seriously. We take
meeting the elements of every charge in every informa-
tion very seriously, because that is our job. And we
take the credibility of our witnesses very seriously as
we review their testimony and their statements to
ensure that there’s consistency and that it makes sense.
That is our job. And that is the job of the detective.’’
The defendant claims that these comments consti-
tuted improper vouching for the state’s credibility. We
do not agree. ‘‘The prosecutor may not express his own
opinion, either directly or indirectly, as to the credibility
of witnesses. . . . Such expressions of personal opin-
ion are a form of unsworn and unchecked testimony.
. . . These expressions of opinion are particularly diffi-
cult for the jury to ignore because of the special position
held by the prosecutor. . . . The jury is aware that he
has prepared and presented the case and consequently,
may have access to matters not in evidence . . . which
the jury may infer to have precipitated the personal
opinions. . . . While the prosecutor is permitted to
comment upon the evidence presented at trial and to
argue the inferences that the jurors might draw there-
from, he is not permitted to vouch personally for the
truth or veracity of the state’s witnesses.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Payne, 260 Conn. 446, 454, 797 A.2d 1088 (2002).
Our careful review of the record reveals that the
prosecutor’s statements in rebuttal closing argument
did not constitute improper vouching. ‘‘A prosecutor’s
mere use of the words ‘honest,’ ‘credible,’ or ‘truthful’
does not, per se, establish prosecutorial impropriety.’’
State v. Ciullo, 314 Conn. 28, 41, 100 A.3d 779 (2014).
Although the state explained that it takes the issue of
witness credibility seriously, its response was reason-
able in light of the defendant’s sharp comments that
Detective Crevier’s method of transcribing statements
was ‘‘unconscionable’’ and ‘‘almost criminal,’’ and the
corresponding inference that he would nefariously
‘‘tweak’’ and place favorable information into the state-
ments. See State v. Thompson, 266 Conn. 440, 469, 832
A.2d 626 (2003) (state did not improperly vouch for
police when it explained, in part, that detectives ‘‘ ‘want
to see that justice is served’ ’’ because remarks were
in response to defendant’s theory that statements
obtained by police were product of coercion). The state
also stated, on numerous occasions throughout its
rebuttal argument, that it was the jury’s job to assess
credibility.
In support of his claim that the prosecutor’s rebuttal
argument was improper, the defendant cites to several
cases in which the court concluded that the statements
at issue improperly expanded the record during closing
argument. See, e.g., State v. Ancona, 270 Conn. 568,
600–601, 854 A.2d 718 (2004) (prosecutor’s reference
to ‘‘ ‘blue code’ ’’ of silence among police officers who
witness criminal conduct by another officer was
improper when no evidence of ‘‘ ‘blue code’ ’’ was pre-
sented at trial), cert. denied, 543 U.S. 1055, 125 S. Ct.
921, 160 L. Ed. 2d 780 (2005); State v. LaVallee, 101
Conn. App. 573, 582, 922 A.2d 316 (prosecutor’s state-
ment that officer had warned witness of penalties
accompanying filing of false statement was not adduced
at trial), cert. denied, 284 Conn. 903, 931 A.2d 267
(2007).
These authorities are readily distinguishable from the
present case. Here, the prosecutor’s comments, which
were in direct response to the arguments of defense
counsel, did not expand the record by arguing that the
state takes its job seriously. As reflected in the portions
of direct examination and cross-examination recited
previously in this opinion, the defense clearly sought
to undermine Detective Crevier’s interview techniques,
as well as T’s claim of when the sexual abuse began.
During closing argument, defense counsel suggested
that Detective Crevier would ‘‘tweak’’ statements pro-
vided to him in order to strengthen the state’s case. On
the basis of our review of the record as a whole, we
are not convinced that the prosecutor’s rebuttal to those
allegations—in particular, that the state took its prose-
cutorial responsibilities and witnesses’ credibility seri-
ously—was improper; her comments were directly tied
to the defense’s interpretation of the evidence adduced
at trial and did not improperly extend beyond the
record.11 See State v. Moore, 293 Conn. 781, 814–15, 981
A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct.
3386, 177 L. Ed. 2d 306 (2010).
II
Having found that prosecutorial impropriety
occurred, as explained in part I A of this opinion, ‘‘we
ask whether the trial as a whole was fundamentally
unfair and [whether] the [impropriety] so infected the
trial with unfairness as to make the conviction a denial
of due process.’’ (Internal quotation marks omitted.)
State v. Felix R., 319 Conn. 1, 16, 124 A.3d 871 (2015).
Our determination of whether the defendant’s due pro-
cess right to a fair trial was denied as a result of the
impropriety is aided by an examination of the following
six factors elucidated in Williams: ‘‘[1] [T]he 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 measures
adopted . . . and [6] the strength of the state’s case.’’
(Internal quotation marks omitted.) Id., quoting State
v. Williams, supra, 204 Conn. 540. After applying these
factors to the prosecutor’s misstatements that the
state’s experts were prohibited as a matter of law from
meeting with the victims, we agree with the state that
the defendant was not deprived of his due process right
to a fair trial.
Turning to the first Williams factor, the state con-
tends that the defense invited the impropriety when
defense counsel argued in closing ‘‘[a]nd yet, she can’t
testify in specifics about either one of these girls, not
because she not only didn’t see them because she’s
not allowed to, but it’s all generalizations.’’ (Emphasis
added.) We agree that such remark reflects that it was
the defense who initially argued that one of the state’s
experts was precluded from meeting with the victims.
With respect to the second Williams factor, the sever-
ity of the impropriety is lessened by the fact that the
defendant did not object to the state’s closing argument.
‘‘Indeed, counsel’s failure to object at trial, while not
by itself fatal to a defendant’s claim, frequently will
indicate on appellate review that the challenged com-
ments do not rise to the magnitude of constitutional
error . . . [necessary] . . . [to] clearly depriv[e] . . .
the defendant of a fair trial . . . .’’ (Internal quotation
marks omitted.) State v. Daniel W., 180 Conn. App. 76,
112, 182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d
638 (2018). Even assuming that the misstatement of the
law was severe, ‘‘the severity of the impropriety is often
counterbalanced in part by the third Williams factor,
namely, the frequency of the [impropriety] . . . .’’
(Internal quotation marks omitted.) Id., 113. To that
end, the prosecutor’s misstatement of the law was not
frequent and was confined to her rebuttal argument.
The defendant does not argue otherwise, and it is evi-
dent that the improprieties, stated in quick succession,
were not sufficiently severe or frequent to deprive the
defendant of a fair trial. Therefore, we weigh the second
and third factors in favor of the state.
The fourth Williams factor, the centrality of the
impropriety to the critical issues in the case, weighs
slightly in favor of the defendant. The state’s experts
opined on how children victimized by sexual abuse
generally respond to the abuse and their abusers. The
prosecutor’s statements that the experts had to speak
in generalizations because they were not permitted to
meet with the victims was directly aimed at reinforcing
the credibility of T and A vis-à-vis the experts’ opinions.
Because this case was based solely on testimony and
was not corroborated by any physical evidence, the
prosecutor’s statements were aimed at the central issue
of credibility. When viewed in the context of the entire
trial, however, the impact of the impropriety was mini-
mal. That is, the jury acquitted the defendant of two
counts in the case against T, demonstrating its ability
to ‘‘filter out the allegedly improper statements and
make independent assessments of credibility.’’ State v.
Ciullo, supra, 314 Conn. 60.
The fifth Williams factor also weighs in favor of the
state. Although the trial court did not address the prose-
cutor’s misstatement with any specific curative instruc-
tions, any improper effect was reduced by the court’s
final instructions to the jury following closing argu-
ments. Specifically, the court explained that it was
solely the jury’s function to assess credibility and that
none of the arguments made by the attorneys consti-
tuted evidence. Moreover, the court correctly instructed
the jury that the law required the experts to testify in
general terms. See, e.g., State v. Dawson, 188 Conn. App.
532, 566–70, 205 A.3d 662 (prosecutor’s misstatement
of law of constructive possession three times during
closing argument constituted impropriety that did not
deprive defendant of fair trial, especially given trial
court’s correct statement of law to jury), cert. granted
on other grounds, 333 Conn. 906, 215 A.3d 731 (2019).
‘‘In the absence of a showing that the jury failed or
declined to follow the court’s instructions, we presume
that it heeded them.’’ (Internal quotation marks omit-
ted.) State v. Thompson, supra, 266 Conn. 485.
Finally, the sixth factor weighs in the state’s favor
because the state’s case was fairly strong, even without
physical evidence. As our Supreme Court has said, ‘‘[i]n
sexual abuse cases . . . the absence of conclusive
physical evidence of sexual abuse does not automati-
cally render [the state’s] case weak . . . .’’ (Internal
quotation marks omitted.) State v. Felix R., supra, 319
Conn. 18. ‘‘The sexual abuse of children is a crime
which, by its very nature, occurs under a cloak of
secrecy and darkness.’’12 Id. Significantly, ‘‘our Supreme
Court has never stated that the state’s evidence must
have been overwhelming in order to support a conclu-
sion that prosecutorial [impropriety] did not deprive
the defendant of a fair trial.’’ (Internal quotation marks
omitted.) State v. Ross, 151 Conn. App. 687, 705, 95 A.3d
1208, cert. denied, 314 Conn. 926, 101 A.3d 271 (2014).
As set forth previously in this opinion, both T and A
testified about the sexual abuse they endured by the
defendant. Although there was no physical evidence
corroborating their testimony, it was supported by sev-
eral other witnesses offered by the state in its case-in-
chief as evidenced by the following additional facts. T
and A repeatedly explained that they delayed disclosing
the abuse because they were afraid of the possible
repercussions. Murphy-Cipolla substantiated those rea-
sons as bases for delayed disclosure in her testimony.
Additionally, the defendant’s daughter, M,13 testified
that A had told her on the night of July 14, 2015, that
the defendant touched her breast. She also testified
that, just prior to T and A’s move to North Carolina,
neither girl wanted to spend time at the defendant’s
home and that such behavior ‘‘seemed different’’ than
it had been in the past. The defendant’s daughter-in-
law, J, testified that, in the summer of 2015, T told her
that she had been sexually assaulted by the defendant
and feared for J’s children, who were living with the
defendant at that time. Moreover, T’s girlfriend, C, testi-
fied that she met T in 2012 and that sometime in 2013,
T told C that the defendant sexually assaulted T during
the time period and in the manner consistent with T’s
testimony.14 Therefore, even if we were to assume that
the lack of physical evidence and the length of time
between the crime and the disclosure tempered the
strength of the state’s case, ‘‘it was not so weak as to
be overshadowed by a single improper comment
. . . .’’ State v. Carlos E., 158 Conn. App. 646, 669,
120 A.3d 1239, cert. denied, 319 Conn. 909, 125 A.3d
199 (2015).
The judgments are affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
1
General Statutes § 53a-70 provides in relevant part: ‘‘(a) A person is
guilty of sexual assault in the first degree when such person . . . (2) engages
in sexual intercourse with another person and such other person is under
thirteen years of age and the actor is more than two years older than such
person . . . .’’
2
General Statutes § 53a-49 (a) provides: ‘‘A person is guilty of an attempt
to commit a crime if, acting with the kind of mental state required for
commission of the crime, he: (1) Intentionally engages in conduct which
would constitute the crime if attendant circumstances were as he believes
them to be; or (2) intentionally does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission constituting
a substantial step in a course of conduct planned to culminate in his commis-
sion of the crime.’’
3
General Statutes § 53a-73a (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the fourth degree when: (1) Such person subjects
another person to sexual contact who is (A) under thirteen years of age
and the actor is more than two years older than such other person . . . .’’
Although § 53a-73a has been amended by the legislature several times
since the events underlying the present case; see, e.g., Public Acts 07-143,
§ 2; those amendments have no bearing on the merits of this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
4
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts . . . of a child under the age
of sixteen years or subjects a child under sixteen years of age to contact
with the intimate parts of such person, in a sexual and indecent manner
likely to impair the health or morals of such child . . . shall be guilty of
. . . a class B felony for a violation of subdivision (2) of this subsection,
except that, if the violation is of subdivision (2) of this subsection and the
victim of the offense is under thirteen years of age, such person shall be
sentenced to a term of imprisonment of which five years of the sentence
imposed may not be suspended or reduced by the court.’’
Although § 53-21 has been amended by the legislature several times since
the events underlying the present case; see, e.g., Public Acts 07-143, § 4;
those amendments have no bearing on the merits of this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
5
The victims’ father, L, is the defendant’s son.
6
The evidence at trial revealed that the victims lived in North Carolina
for one year and thereafter returned to Connecticut. T testified that, upon
returning from North Carolina, she and A lived with the defendant and his
wife for a period of time.
7
Trooper O’Brien took the statement of the defendant’s wife on August
4, 2015, wherein she stated, among other things, that one time T told her
that the defendant put his arm around T while in his bedroom and that made
her feel ‘‘uncomfortable.’’ According to the defendant’s wife, the defendant
responded that he had ‘‘barely touched her.’’
8
The defendant denied that anything of a sexual nature happened between
him and A. Specifically, with regard to T, the defendant stated that, on
several occasions, he woke up from a nap with T’s hand on his penis. He
stated that, on other occasions, T would rub her genital area on his leg and
groin area. According to the defendant, the ‘‘last time [he] took a nap’’ was
when he woke up to T on his chest ‘‘moving [her vagina] around . . . a
couple of inches from [his] face.’’ The defendant was ‘‘surprised [by] this.’’
The statement was signed by the defendant as an attestation of its accuracy.
9
With respect to the allegations concerning T, the state charged the defen-
dant in Docket No. TTD-CR-XX-XXXXXXX-T. With respect to the allegations
regarding A, the state charged the defendant in Docket No. TTD-CR-16-
0108519-T. The matters were tried together.
10
As our Supreme Court has held, ‘‘our concerns about indirect vouching
. . . require us to limit expert testimony about the behavioral characteristics
of child sexual assault victims admitted under State v. Spigarolo, supra, 210
Conn. 378–80, to that which is stated in general or hypothetical terms, and
to preclude opinion testimony about whether the specific complainant has
exhibited such behaviors.’’ (Citations omitted.) State v. Favoccia, supra, 306
Conn. 803.
11
Assuming, arguendo, that the state’s comments described in part I B of
this opinion constituted improper vouching for the credibility of the state
and the police, we would nevertheless conclude that the defendant’s due
process claim would fail under our assessment of the Williams factors.
Specifically, the comments were invited by defense counsel because of
her own comments regarding T’s and Detective Crevier’s credibility during
closing argument. The state’s comments were not frequent, as they only
occurred during rebuttal closing argument. Although the credibility of the
witnesses was a central issue in this case, as it was without physical evidence,
the trial court explained that the arguments of counsel were not evidence
and that it was the jury’s job to assess credibility. Finally, the state’s case
was fairly strong because it was buttressed by the testimony of various
witnesses that corroborated the victims’ testimony and version of events.
See part II of this opinion.
12
In Felix R., our Supreme Court further explained that, on the facts of that
case, ‘‘[i]t is not surprising, therefore, for there to be a lack of corroborating
physical evidence in cases that are factually similar to the present case,
where the victim submitted to the sexual abuse of her father in the face of
his threats to physically harm her and send her back to the Dominican
Republic if she told anyone. Given the rarity of physical evidence in these
circumstances, a case is not automatically weak just because a child’s will
was overborne and he or she submitted to the abuse of his or her own
parent. To conclude otherwise would place an insurmountable obstacle in
the path of many sexual assault prosecutions.’’ State v. Felix R., supra, 319
Conn. 18–19. Although the factual circumstances in Felix R., evidenced
from this quoted passage, are different from those in the present case, our
Supreme Court’s guidance is no less apropos here.
13
The victims are M’s nieces.
14
In its final instructions to the jury, the court gave the following charge
with respect to, inter alia, C’s, J’s, and M’s testimony: ‘‘[I]n cases involving
an allegation of a sexual offense, the state is permitted in certain circum-
stances to introduce evidence of out-of-court statements to other persons
about what occurred. The only reason that the evidence is permitted is to
negate the inference that the complainant failed to confide in anyone about
the sexual offense. In other words, the narrow purpose of the constancy
evidence is to negate any inference that [T] or [A] failed to tell anyone about
the sexual offense and, therefore, that [T’s] or [A’s] later assertion to the
police could not be believed.
‘‘Constancy evidence is not evidence that the sexual offense actually
occurred, or that [T] or [A] is credible. It merely serves to negate any
inference that, because of [T’s] or [A’s] assumed silence, the offense did
not occur. It does not prove the underlying truth of the sexual offense.
Constancy evidence only dispels any negative inference that might be made
from [T’s] or [A’s] assumed silence.’’
In his reply brief, the defendant appears to contend that the state’s claim
that its case was strong in light of, inter alia, C’s, J’s, and M’s testimony
was misleading because their testimony could be used only as constancy
evidence. Not only is this claim inadequately briefed; see, e.g., Getty Proper-
ties Corp. v. ATKR, LLC, 315 Conn. 387, 413, 107 A.3d 931 (2015); we
reiterate that ‘‘[c]onstancy of accusation testimony can properly be used to
corroborate the victim’s testimony.’’ State v. Salazar, 151 Conn. App. 463,
472, 93 A.3d 1192 (2014), cert. denied, 323 Conn. 914, 149 A.3d 496 (2016).
Congruent with that principle, the state’s argument that the constancy wit-
nesses’ testimony strengthened their case is proper. We also note that the
record reveals that in the defendant’s cross-examination of T and A, they
were asked several times about reporting the abuse. The victim in a sexual
assault case may testify on ‘‘direct examination regarding the facts of the
sexual assault and the identity of the person or persons to whom the incident
was reported. . . . Thereafter, if defense counsel challenges the victim’s
credibility by inquiring, for example, on cross-examination as to any out-
of-court complaints or delayed reporting, the state will be permitted to call
constancy of accusation witnesses . . . .’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Daniel W. E., 322 Conn. 593, 629, 142 A.3d
265 (2016).