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******************************************************
STATE OF CONNECTICUT v. A. M.*

(SC 19497)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued September 16—officially released December 23, 2016**

Jennifer F. Miller, deputy assistant state’s attorney,

with whom, on the brief, were Stephen J. Sedensky

III, state’s attorney, and Colleen P. Zingaro, assistant

state’s attorney, for the appellant (state).

Bethany L. Phillips, for the appellee (defendant).
Opinion

EVELEIGH J. In this certified appeal, we consider

whether the state deprived the defendant, A. M., of

his fifth amendment right to remain silent when the

prosecutor twice noted during closing arguments that

the defendant had not testified in his own defense. After

a trial, a jury found the defendant guilty of multiple

offenses, including sexual assault in the first degree,

attempt to commit sexual assault in the first degree,

and risk of injury to a child.1 The trial court rendered

judgment in accordance with the jury’s verdict, and

the defendant appealed to the Appellate Court. In his

appeal, the defendant claimed, among other things, that

the prosecutor’s comments during closing argument

were improper because they infringed on his fifth

amendment right to remain silent, depriving him of a

fair trial. The Appellate Court agreed and reversed the

judgment and remanded the case for a new trial. State

v. A. M., 156 Conn. App. 138, 156, 111 A.3d 974 (2015).

We agree that the prosecutor’s comments were

improper and we find that the state has failed in its

burden of proof to show that the comments were harmless beyond a reasonable doubt. Therefore, we affirm

the judgment of the Appellate Court.

The jury reasonably could have found the following

facts. The defendant began dating the victim’s mother

in 2003 and moved in with the mother and her three

children later that same year. In August, 2009, the victim, who was approximately ten years old at the time,

told her mother’s cousin that the defendant had

squeezed her buttocks while she was washing dishes.

The cousin alerted the victim’s mother who then

removed the defendant from the home. Approximately

two weeks later, the victim’s mother allowed the defendant back into the home. She did not call the police or

alert the victim’s fatherto the allegations. Seven months

after the victim first disclosed her allegations of abuse,

a member of the victim’s extended family went to the

victim’s father and spoke to him about the allegations.

Soon thereafter, the victim’s father questioned the victim about the allegations, which she confirmed as true.

Later that same day, he filed a report with Danbury

Police Department.

After receiving the report, the police commenced an

investigation. Officers interviewed the victim, who confirmed that the defendant had been touching her inappropriately. Police officers also interviewed the

defendant, who gave oral and written statements to

police discussing the allegations and denying that he

had any inappropriate contact with the victim.

At the request of the police, the victim underwent a

forensic interview, which was video recorded. In the

interview, the victim described numerous incidents in

which the defendant sexually abused her. She stated
that several times when she was washing dishes, the

defendant came up behind her and ‘‘squeezed,’’

‘‘smacked,’’ and otherwise touched her buttocks while

telling her that she was pretty. She also stated that on

other occasions, the defendant squeezed, touched, and

tried to lick her breasts. The victim recalled another

occasion during which the defendant carried the victim

into his room, told her he loved her and pulled down

her pants. He then pulled open her legs and licked her

genitals. Finally, the victim stated that the defendant

once pinned her in the corner of a room, made her lay

on the floor, pulled down her pants, and placed his

penis on her buttocks. The defendant then attempted

to penetrate the victim’s anus with his penis, but was

unable to do so. The victim initially told the forensic

interviewer that these events occurred after August,

2009, when the defendant had returned after being

kicked out of the home, but later, she clarified that

these incidents occurred prior to August, 2009.

The victim also underwent a physical examination at

the request of the police. The examination did notreveal

any physical evidence of abuse. The examining physician later testified at trial, however, that the lack of

physical evidence did not prove the absence of abuse

based on the victim’s description of how the abuse

occurred.

On the basis of the information gathered during their

investigation, the police obtained a warrant for the

defendant’s arrest, and the state later charged the defendant with numerous crimes relating to sexual assault

and risk of injury to a child.

At trial, the victim testified about the incidents in

which the defendant grabbed her buttocks. At one point

during her testimony, the victim stated that the defendant had squeezed her buttocks six or seven times.

Subsequently, she testified that he had done so only

two or three times. When the prosecutor questioned

the victim about the other instances of abuse—the

defendant licking her genitals and attempting to penetrate her—the victim would not discuss them, saying,

‘‘I don’t want to talk about this. Can’t.’’ After the victim

refused to discuss these incidents, the trial court admitted into evidence the video recording of the victim’s

forensic interview, which the jury was able to consider

as substantive evidence of guilt pursuant to State v.

Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,

479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

The portion of the video recording played at trial

included the victim’s descriptions of the incidents that

she was unwilling to testify about at trial. Defense counsel was able to extensively cross-examine the victim

about the allegations, including those made during the

forensic interview and depicted in the video recording.

The state presented expert testimony to explain why

the victim’s recollection of when the sexual abuse
occurred might have varied. The state’s expert, Larry

M. Rosenberg, a clinical psychologist, testified that children view and experience time differently than adults.

Rosenberg also testified that the effect of trauma on

memory is commonly to make it less accurate. Noting

that the victim was only approximately ten years old

at the time of the assaults, Rosenberg testified that

children between the ages of eight and ten years old

were not as capable of the abstract reasoning and

enhanced judgment possessed by adolescents, and

though they could be more suggestible, they were less

likely to make false reports than adolescents.

In his defense, the defendant presented witnesses to

challenge the victim’s credibility. The defendant primarily relied upon the testimony ofthe victim’s mother, who

testified regarding the defendant’s positive character

traits and her disbelief that he would have committed

these crimes—testimony that the state impeached with

evidence of the defendant’s history of violence toward

her and other women. The defendant also presented

his own expert who testified, contrary to the state’s

expert, that a ten year old child’s memory skills are

the same as an adult’s, and that such a child would

remember traumatic events as clearly as other memories, if not better. The defendant did not testify at trial.

After the close of evidence, the state and defense

counsel gave closing arguments to the jury. During the

state’s rebuttal argument, the prosecutor twice

remarked to the jury that the defendant had not testified.

The prosecutor made the first remark while she

reviewed the contents of the written statements that

the defendant gave to the police, which had been admitted into evidence during trial. After summarizing portions of the testimony from the victim’s mother, the

prosecutorturned her attention to the defendant’s statements to the police, telling the jury: ‘‘This is the other

thing. Counsel did not present his client to testify. That’s

their right guaranteed by the constitution if any of us

were accused. But there is evidence as to things [the

defendant] said. His sworn statement. Also, testimony

by a couple of police officers as to what he said to them,

and that’s before you.’’ The prosecutor then discussed

portions of the defendant’s statements to the police,

before returning to discuss additional portions of the

testimony of the victim’s mother and arguing that her

testimony lacked credibility.

Thereafter, the prosecutor again turned her attention

to the defendant’s statements to the police, this time

to argue that they also lacked credibility. Specifically,

the prosecutor stated: ‘‘You’ve got to look at the credibility of the defendant as well. I mean, he didn’t testify.

Again, that’s his right, but there are some statements

that are contained in the evidence. One [of] which that

I’ve just referred to was his sworn statement as well
as some statements by the police that he made the night

he was arrested. Statements like, ‘I’ve never seen her

naked.’ Three year olds in the house? We’re all parents.

Come on, never? Never. Never touched or tickled her

ever. Really? Does that make sense?’’ The prosecutor

then went on to point out inconsistencies within the

defendant’s own statements and between the defendant’s statements and some of the testimony given at

trial.

Defense counsel did not object to either of the prosecutor’s comments about the defendant’s failure to testify, either during or after the state’s argument. After

the state’s rebuttal argument, counsel did, however,

make an unrelated objection about a different aspect

of the prosecutor’s rebuttal argument.

Afterresolving the unrelated objection, the court then

instructed the jury on the law that applied to the case.

Although the defendant had not objected to the prosecutor’s comments, the court’s charge nevertheless

included the following instruction aboutthe defendant’s

decision not to testify, as required by General Statutes

§ 54-84 (b): ‘‘Now, the defendant has elected not to

testify in this particular case. An accused has the right

and the option to testify or not to testify at his or her

own trial, and is under no obligation to testify. He has

a constitutional right that is protected by the [United

States constitution] as well as the Connecticut [constitution] not to testify, and you may draw no unfavorable

inferences from the defendant’s choice not to testify in

this particular instance.’’

After receiving the court’s instructions, the jury

retired to deliberate and ultimately returned a verdict

finding the defendant guilty of all but one charge. The

trial court thereafter rendered judgment in accordance

with the jury’s verdict, issuing a total effective sentence

of twenty years of imprisonment, execution suspended

after twelve years, followed by twenty years of probation with special conditions.

The defendant appealed from the judgment of the

trial court to the Appellate Court, claiming, among other

things, that the prosecutor’s references to the defendant’s decision not to testify were improper and

deprived him of his right to a fair trial.2 The Appellate

Court agreed with the defendant and reversed the trial

court’s judgment. State v. A. M., supra, 156 Conn. App.

148–49, 156. We granted the state’s petition for certification on the following issue: ‘‘Did the Appellate Court

properly determine that certain comments made by the

prosecutor amounted to prosecutorial improprieties

and that such improprieties deprived the defendant of

his due process rights to a fair trial?’’ State v. A. M.,

317 Conn. 910, 116 A.3d 309 (2015). On appeal to this

court, the state claims that the Appellate Court improperly concluded that the prosecutor’s comments were

improper. The state also contends that even if the com-
ments were improper, they were harmless beyond a

reasonable doubt.

As a threshold matter, we must revise the certified

question and clarify the proper standard of review. The

Appellate Court treated the defendant’s claim as implicating his general due process right to a fair trial rather

than as a claim arising under the fifth amendment right

to remain silent. The Appellate Court thus decided the

defendant’s appeal using the due process standard for

prosecutorial misconduct claims from State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), to conclude that the prosecutor’s comments in the present

case deprived the defendant of his due process right

to a fair trial. State v. A. M., supra, 156 Conn. App.

156. We have previously clarified, however, that the

Williams standard applies only when a defendant

claims that a prosecutor’s conduct did not infringe on

a specific constitutional right, but nevertheless

deprived the defendant of his general due process right

to a fair trial. State v. Payne, 303 Conn. 538, 562–63,

34 A.3d 370 (2012). For example, in Williams, the defendant argued that the prosecutor’s comments deprived

him of a fair trial because the prosecutor unfairly

expressed his personal opinions about a witness’ credibility and appealed to the passions and emotions of the

jurors. State v. Williams, supra, 540–41. There was no

claim in Williams that the prosecutor’s comments

infringed an enumerated constitutionalright, and,therefore, the court applied the general due process standard

for prosecutorial impropriety claims. Id., 539–40. Under

the Williams general due process standard, the defendant has the burden to show both that the prosecutor’s

conduct was improper and that it caused prejudice to

his defense. Id.; see also State v. Payne, supra, 562–63.

We held in Payne, however, that a different standard

applies when the defendant claims that the prosecutorial impropriety ‘‘infringed a specifically enumerated

constitutional right, such as the fifth amendment right

to remain silent . . . .’’ (Emphasis added.) State v.

Payne, supra, 303 Conn. 562. If the defendant raises

this type of claim, the defendant initially has the burden

to establish that a constitutional right was violated. Id.

If the defendant establishes the violation, however, the

burden shifts to the state to prove that the violation

was harmless beyond a reasonable doubt.3

Id.

Because the defendant’s claim in the present case

implicated his fifth amendment right to remain silent,

we apply the harmless error standard as called for in

Payne rather than the general due process standard

from Williams. We therefore restate the certified question to ask: ‘‘Did the Appellate Court properly determine

that certain comments made by the prosecutor violated

the defendant’s right to remain silent and, if so, was

the violation harmless beyond a reasonable doubt?’’

Turning to the merits of the present case, we first
consider whether the prosecutor’s comments violated

the defendant’s fifth amendment right to remain silent.4

The fifth amendment prohibits the state from forcing

the defendant to be a witness against himself, and the

United States Supreme Court has concluded that this

protection also prohibits prosecutors from commenting

at trial on the defendant’s decision not to testify. Griffin

v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L.

Ed. 2d 106 (1965); see also State v. Parrott, 262 Conn.

276, 292, 811 A.2d 705 (2003) (‘‘[i]t is well settled that

comment by the prosecuting attorney . . . on the

defendant’s failure to testify is prohibited by the fifth

amendment to the United States constitution’’ [internal

quotation marks omitted]). In Griffin, the court reasoned that allowing a prosecutor to comment on the

defendant’s refusal to testify would be equivalent to

imposing a penalty for exercising his constitutional

right to remain silent.5 Griffin v. California, supra, 614.

In the present case, the prosecutor’s two statements

at issue clearly violated the defendant’s fifth amendment right to remain silent. The prosecutor’s remarks

during closing arguments directly and unambiguously

called the jury’s attention to the defendant’s decision

not to testify. This is precisely the type of comment

proscribed by Griffin.

6

The state argues, however, that despite the prosecutor’s direct reference to the defendant’s failure to testify, the comments nevertheless did not violate the

protections of the fifth amendment. According to the

state, we must apply what is known as the ‘‘ ‘naturally

and necessarily’ ’’ test to determine whether a prosecutor’s comments violate the fifth amendment. That test

asks whether ‘‘the language used [by the prosecutor

was] manifestly intended to be, or was . . . of such a

characterthat the jury would naturally and necessarily

take it to be a comment on the failure of the accused

to testify.’’ (Emphasis added; internal quotation marks

omitted.) State v. Haase, 243 Conn. 324, 333, 702 A.2d

1187 (1997), cert. denied, 523 U.S. 1111, 118 S. Ct. 1685,

140 L. Ed. 2d 822 (1998). The state argues that a prosceutor’s statements violate the fifth amendment only if they

‘‘ ‘naturally and necessarily’ ’’ imply to the jury that it

should draw an adverse inference and infer guilt from

the defendant’s silence. According to the state, the prosecutor’s comments in the present case did not violate

the fifth amendment because the comments did not

naturally and necessarily ask the jury to infer the defendant’s guilt from the defendant’s silence, but were made

to remind the jury that although the defendant had not

testified, the jury still had evidence of his statements

before it that it could consider. We disagree.

First, the state’s reliance on the ‘‘naturally and necessarily’’ testis misplaced. The ‘‘naturally and necessarily’’

standard applies only when it is unclear whether the

prosecutor’s comments at issue referred to the defen-
dant’s failure to testify, not when the prosecutor makes

comments that explicitly refer to the defendant’s

silence. See, e.g., United States v. Tanner, 628 F.3d 890,

899 (7th Cir. 2010) (‘‘[a]bsent [a] direct comment, [t]he

right against self-incrimination is violated only when

. . . the remark was of such a character that the jury

would naturally and necessarily take it to be a comment

on the defendant’s silence’’ [internal quotation marks

omitted]); Lent v. Wells, 861 F.2d 972, 975 (6th Cir. 1988)

(noting that direct reference to failure to testify clearly

violates fifth amendment, while indirect remark is prohibited only if it ‘‘ ‘naturally and necessarily’ ’’ would

be understood as reference to defendant’s silence); see

also State v. Ruffin, 316 Conn. 20, 31, 110 A.3d 1225

(2015) (applying ‘‘ ‘naturally and necessarily’ ’’ test to

determine if prosecutor’s comments indirectly referred

to defendant’s failure to testify); State v. Colon, 70 Conn.

App. 707, 713–14, 799 A.2d 317 (noting that even indirect

remark about defendant’s failure to testify can violate

fifth amendment if it ‘‘naturally and necessarily’’ would

be understood as reference to defendant’s silence at

trial), cert. denied, 261 Conn. 933, 806 A.2d 1067 (2002).

For example, in State v. Ruffin, supra, 316 Conn. 30,

the prosecutor stated, during closing argument, that no

witness had controverted the victim’s testimony, and

the defendant claimed that this statement was a comment on his failure to testify. Because the prosecutor

had not directly mentioned the defendant’s failure to

testify, we used the ‘‘ ‘naturally and necessarily’ ’’ standard to determine whether the jury would nevertheless

have understood the prosecutor’s statement as referring

to the defendant’s failure to testify. Id., 29. Using this

standard, we concluded that the most reasonable interpretation of the comment was that it referred to the

credibility of the victim, and thus did not ‘‘naturally and

necessarily’’ refer to the defendant’s failure to testify.

Id., 31. As a result, we concluded that the comments

did not refer to the defendant’s failure to testify and

were therefore not improper. Id., 32.

In the present case, however, there is no question

that the prosecutor referred directly to the defendant’s

failure to testify. There is, therefore, no need to apply

the ‘‘naturally and necessarily’’ test to determine

whether the comments violated the fifth amendment.

Second, to violate the fifth amendment, the prosecutor’s comments need not imply that the jury should

draw an adverse inference from the defendant’s silence.

It is enough that the comment by an adverse party calls

the jury’s attention to the defendant’s silence because

any such comment ‘‘heighten[s] the jury’s awareness

of the defendant’s silence, namely, his failure to answer

to the state’s charges . . . [and] is improper.’’ State v.

Smalls, 78 Conn. App. 535, 543, 827 A.2d 784, cert.

denied, 266 Conn. 931, 837 A.2d 806 (2003). When the

defendant chooses not to testify, he takes the risk that
the jury will view his silence with skepticism—a prosecutor’s explicit reminders to the jury of the defendant’s

decision serves only to heighten this risk, burdening

the defendant’s constitutional right to remain silent.

Id.; see also Griffin v. California, supra, 380 U.S. 614.

Although the extent to which the prosecutor’s comments implied that the jury should hold the defendant’s

silence against him may relate to the harmfulness of

the violation, it does not impact our conclusion that a

violation occurred in the first place.

Because the defendant here has established that the

prosecutor violated his fifth amendment rights by

directly referencing his failure to testify, we next must

determine whether the state has proven beyond a reasonable doubt that the violation was harmless. ‘‘[T]here

may be some constitutional errors which in the setting

of a particular case are so unimportant and insignificant

that they may, consistent with the [f]ederal [c]onstitution, be deemed harmless, not requiring the automatic

reversal of the conviction.’’ Chapman v. California,

386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967);

see also United States v. Hasting, 461 U.S. 499, 509,

103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (‘‘[i]t is the duty

of a reviewing court to consider the trial record as a

whole and to ignore errors that are harmless, including

most constitutional violations’’). The state has the burden to prove that this error was harmless beyond a

reasonable doubt. State v. Payne, supra, 303 Conn. 563

(‘‘if the defendant raises a claim that the prosecutorial

improprieties infringed a specifically enumerated constitutional right, such as the fifth amendment right to

remain silent . . . and the defendant meets his burden

of establishing the constitutional violation, the burden

is then on the state to prove that the impropriety was

harmless beyond a reasonable doubt’’). The focus of

our harmless error inquiry is on whether the state has

demonstrated that the otherwise improper comments

did not influence the outcome of the trial. United States

v. Hasting, supra, 510–11; Chapman v. California,

supra, 24.

Applying this test to the present case, we are convinced that the state has not met its burden of showing

that the comments were harmless beyond a reasonable

doubt. Although we are not required to do a complete

Williams analysis due to the nature of the right

infringed, we find the Williams factors to be a useful

guide in our evaluation of whether the state has met

its burden of proof to show harmlessness beyond a

reasonable doubt.

7

‘‘We are mindful throughout this

inquiry, however, of the unique responsibilities of the

prosecutor in our judicial system. A prosecutor is not

only an officer of the court, like every other attorney,

but is also a high public officer, representing the people

of the [s]tate, who seek impartial justice for the guilty

as much as for the innocent. . . . By reason of his

[or her] office, [the prosecutor] usually exercises great
influence upon jurors. [The prosecutor’s] conduct and

language in the trial of cases in which human life or

liberty are at stake should be forceful, but fair, because

he [or she] represents the public interest, which

demands no victim and asks no conviction through the

aid of passion, prejudice or resentment. If the accused

be guilty, he [or she] should [nonetheless] be convicted

only after a fair trial, conducted strictly according to

the sound and [well established] rules which the laws

prescribe. While the privilege of counsel in addressing

the jury should not be too closely narrowed or unduly

hampered, it must never be used as a license to state,

or to comment upon, or to suggest an inference from,

facts not in evidence, or to present matters which the

jury [has] no right to consider.’’ (Internal quotation

marks omitted.) State v. Singh, 259 Conn. 693, 701–702,

793 A.2d 226 (2002). With that proviso in mind, we now

turn to the Williams factors for guidance.

First, as we noted previously, there is no question

that the comments of the prosecutor were not invited

by either the argument or conduct of defense counsel.

Second, the remarks of the prosecutor were particularly

severe. The state argues that the prosecutor’s remarks

were not of such a character that the jury would ‘‘naturally and necessarily’’ have taken them to be an adverse

comment on the defendant’s failure to testify. It argues

that their context diluted any impropriety and demonstrated a purpose unrelated to the impropriety, namely,

to focus on the statements given by the defendant to

the police. We disagree. The statements of the prosecutor were particularly severe in this case because the

prosecutor, as an officer of the court, violated a state

statute, § 54-84 (a), by commenting on the fact that the

defendant did not testify, in open court, and did it on

two occasions. The prosecutor then went on to tell the

jurors that they could evaluate the credibility of the

defendant through the statements he gave to the police,

yet the only charge that the judge gave regarding credibility related to witnesses who testified.8

In spite of the

prosecutor’s comments asking the jurors to judge the

defendant’s credibility by the statements he gave to

the police, the jury was instructed by the judge that

credibility related to witnesses who testified. Thus, the

prosecutor, through her statements on credibility, was

reminding the jurors again that the defendant did not

testify. The state argues that the fact that the defense

counsel did not object to the prosecutor’s comments,

either during the prosecutor’s argument or afterward,

weighs heavily in any analysis of the harmfulness of

the statements. We acknowledge that the failure to

object on the part of defense counsel is certainly a

factor to consider. We note that, in nearly all cases

where defense counsel fails to object to and request a

specific curative instruction in response to a prosecutorial impropriety, especially an impropriety that we do

not consider to be particularly egregious, and the
court’s general jury instruction addresses that impropriety, we have held that the court’s general instruction

cures the impropriety. See, e.g., State v. Jones, 320

Conn. 22, 38–39, 128 A.3d 431 (2015); State v. Luster,

279 Conn. 414, 446, 902 A.2d 636 (2006); State v. Warholic, 278 Conn. 354, 402, 897 A.2d 569 (2006); State v.

Stevenson, 269 Conn. 563, 597–98, 849 A.2d 626 (2004).

In fact, we have noted that, ‘‘defense counsel’s failure

to object to the prosecutor’s argument when it was

made suggests that defense counsel did not believe that

it was unfair in light of the record of the case at the

time.’’ (Internal quotation marks omitted.) State v.

Ceballos, 266 Conn. 364, 414, 832 A.2d 14 (2003). We

have recognized, nevertheless, that defense counsel

may elect not to object ‘‘for tactical reasons, namely,

because he or she does not want to draw the jury’s

attention to it or because he or she wants to later refute

that argument.’’ (Internal quotation marks omitted.) Id.9

If, however, defense counsel fails to object to particularly egregious or pervasive misconduct, and the general jury instructions do not specifically address the

prosecutor’s misconduct, we have held that the general

jury instructions were insufficient to cure the misconduct, in spite of defense counsel’s failure to object.

We have stated that prosecutorial misconduct can be

‘‘sufficiently egregious to overcome the suggestion that

defense counsel did not think it was unfair at the time.’’

Id., 415; id. (concluding that prosecutorial statements,

relating to comments on veracity of other witnesses and

inflammatory religious comment, were severe despite

defense counsel’s failure to object). Further, our case

law has recognized that ‘‘the defendant’s failure to

object at trial to each of the occurrences that he now

raises as instances of prosecutorial impropriety, though

relevant to our inquiry, is not fatal to review of his

claims.’’ (Internal quotation marks omitted.) State v.

Taft, 306 Conn. 749, 762, 51 A.3d 988 (2012). In the

present case, we already have decided that the prosecutor’s comments were particularly egregious. Therefore,

we follow cases such as State v. Angel T., 292 Conn.

262, 291, 973 A.2d 1207 (2009), and State v. Maguire,

310 Conn. 535, 560–61, 78 A.3d 828 (2013), wherein

we have held that in instances of particularly grievous

improprieties the failure to object is overcome by a

general instruction that did not fully address the impropriety. In Angel T., for instance, we concluded that the

general instructions were insufficient to cure misconduct that had occurred repeatedly throughout the trial

because the general jury instructions did not directly

address all of the misconduct. State v. Angel T., supra,

291. We concluded that the prosecutor had improperly

suggested that the defendant had sought the aid of

counsel prior to being charged with a crime because

he had something to hide. Id., 290. The prosecutor

repeatedly elicited improper evidence about the defendant retaining counsel, first through direct examination

of a police officer and cross-examination of the defen-
dant, and then by discussing that testimony at length

during opening and rebuttal summations. Id. The jury

instructions addressed one aspect of the impropriety—

emphasizing that attorneys’ arguments were not evidence—but the instructions did not specifically address

the prosecutor’s suggestion that the defendant’s choice

to retain counsel indicated that he had something to

hide. We found that although the general jury instructions might have mitigated some of the harm from the

improprieties, they did not address all of the improprieties, and, therefore, were not sufficiently curative. Id.,

291 and n.22.

State v. Maguire, supra, 541, involved a mother who

hired the defendant to help her care for her four children. Subsequently, the defendant was charged with

two counts of risk of injury to a child and one count

each of the crimes of sexual assault in the fourth degree

and attempt to commit sexual assault in the first degree

involving one of the children. Id., 544. Maguire also

involved a forensic interview that the victim had with

a multidisciplinary team of mental health and law

enforcement employees, ‘‘all of whom work[ed] collaboratively to investigate and treat cases of reported sexual abuse.’’ Id., 543. In Maguire, the defendant claimed

that ‘‘the prosecutor engaged in impropriety by repeatedly asserting, during rebuttal closing argument, that

both the defendant and defense counsel were asking

the jury to ‘condone child abuse’ and by claiming, inter

alia, that defense counsel had ‘lied’ to the victim during

cross-examination, that the defendant’s testimony was

‘coached’ and that the defense strategy was a game of

‘smoke and mirrors . . . .’ ’’ Id., 545. The defendant

also contended that the prosecution engaged in impropriety during defense counsel’s cross-examination of

the director of the multidisciplinary team. Id. Specifically, on appeal, the defendant asserted that the prosecutor suggested, contrary to the assertions of defense

counsel that the redacted portions of the transcript of

the forensic interview revealed that the director did, in

fact, question the victim about inconsistent statements

that the victim made as to whether she had actually

seen the defendant’s penis. The defendant maintained

that, ‘‘because these improprieties bore directly on the

central issue in the case, namely, the defendant’s credibility, they very easily could have tipped the balance

in a case that turned entirely on whom the jury found

to be more credible—the defendant or the victim.’’ Id.

We concluded in Maguire that prosecutorial improprieties occurred and then examined whether the improprieties deprived the defendant of a fair trial. Id., 560–62.

It is of note that, in Maguire, defense counsel objected

to only one of the many improprieties (addressing the

redacted portions of the interview). Id., 561. We concluded that the failure of defense counsel to object was

the only factor that weighed in favor of the state. Id.

In examining the jury charge in that case, we concluded
as follows: ‘‘Although the trial court charged the jury

in its final instructions that the law prohibits the prosecutor from offering her personal opinion as to the credibility of any witness, the trial court gave no curative

instructions at the time of the improperremarks, which,

in our view, were relatively severe because they

demeaned the integrity of defense counsel by improperly calling into question his veracity and denigrated

the defense theory of the case by mischaracterizing

it.’’ Id.

While it may be argued that the remarks in both Angel

T. and Maguire may be explained by the overexuberance of counsel in the ‘‘heat of battle,’’ there can be no

such explanation for the statements of the prosecutor

in the present case that are specifically forbidden by

state statute and which the prosecutor is presumed to

have known prior to the trial. Therefore, we conclude

that the egregiousness of the remarks in this case were

equal to, if not greater than, the remarks in both Angel

T. and Maguire. Any curative instruction should have

been immediately given by the trial judge, and the general jury instruction, as we discuss hereinafter, was

insufficient to cure the impropriety. The prosecutor,

an officer of the court, twice violated a state statute

prohibiting her from commenting on the defendant’s

failure to testify. Therefore, we hold that the remarks

were egregious and were not cured by the general

jury instructions.

Third, we turn to the frequency of the prosceutor’s

remarks. Although it may be argued that the prosecutor

only mentioned the defendant’s failure to testify on two

occasions, in our opinion, the violation of a specific

state statute forbidding the comments means that two

occasions of such violations is two too many. Indeed,

we could not condone even one violation of such an

extreme nature. Therefore, we conclude that, given the

context of the remarks, they were frequent.

Fourth, we turn to the centrality of the impropriety

to the critical issues in the case. It is not contested that

the prosecutorial impropriety in the present case went

directly to the central issue, namely, credibility. The

central issue for the jury was whether it would believe

the allegations of the victim, particularly when there

was no physical evidence. As this court previously has

recognized, ‘‘[b]ecause there was no independent physical evidence of the assault and no other witnesses to

corroborate [the victim’s] testimony, her credibility was

crucial to successful prosecution of the case.’’ State v.

Ritrovato, 280 Conn. 36, 57, 905 A.2d 1079 (2006); see

also State v. Iban C., 275 Conn. 624, 641–42, 881 A.2d

1005 (2005) (when there was no physical or medical

evidence of abuse and no eyewitness testimony other

than victim’s testimony, victim’s credibility was central

to state’s case). As we stated in State v. Maguire, supra,

310 Conn. 561–62, ‘‘[i]n addition, each instance of prose-
cutorial impropriety bore directly on the central issue

in the case, namely, the credibility of the defendant

and his theory of defense. As the defendant maintains,

because the state’s case rested entirely on the victim’s

credibility, any improper remarks by the prosecutor

that tended to bolster [the victim’s] credibility, or to

diminish that of the defendant, may very well have had

a substantial impact on the verdict.’’ See also State v.

Alexander, 254 Conn. 290, 308, 755 A.2d 868 (2000)

(‘‘[t]he improper comments directly addressed the critical issue in this case, the credibility of the victim and

the defendant’’ [internal quotation marks omitted]).

Furthermore, this court has recognized that ‘‘[t]he jury

might have doubted the uncorroborated testimony

offered [to establish] the defendant’s guilt . . . but

[found] him [guilty] because he did not take the stand

to deny his guilt.’’ State v. Dudla, 190 Conn. 1, 7, 458

A.2d 682 (1983); see also State v. Ruocco, 322 Conn.

796, 806, 144 A.3d 354 (2016) (‘‘given the discrepancies

in [uncorroborated testimony by a witness] and the fact

that there was only one eyewitness . . . we cannot

discountthe possibility thatthe jury might have doubted

the [testimony of other witnesses] but found the defendant guilty because of his failure to testify’’). Similarly,

in the present case, the prosecutorial improprieties

focused the jury’s attention on the defendant’s failure

to take the stand to deny his guilt and, therefore,

improperly bolstered the testimony of the victim. The

credibility of the defendant and the victim were particularly central to the present case because there was no

physical evidence, no eyewitness testimony and the

victim’s testimony was inconsistent regarding the incidences of abuse. Therefore, we conclude, as we did in

State v. Maguire, supra, 561–62, that because, in the

present case, the state’s charges rested entirely on the

credibility of the victim, the comments of the prosecutor tended to diminish the credibility of the defendant

and to bolster the victim’s credibility.

Fifth, we examine the strength of the state’s case.

This court repeatedly has recognized that ‘‘a sexual

assault case lacking physical evidence is not particularly strong, especially when the victim is a minor.’’

State v. Ritrovato, supra, 280 Conn. 57; see also State

v. Ceballos, supra, 266 Conn. 416 (‘‘a child sexual abuse

case lacking conclusive physical evidence, when the

prosecution’s case rests on the credibility of the victim,

is not particularly strong’’ [internal quotation marks

omitted]). Furthermore, as this court explained in State

v. Maguire, supra, 310 Conn. 561, ‘‘the state’s case was

not particularly strong. Significantly, there was no physical evidence of abuse, and there was no eyewitness

testimony other than that of the victim, whose testimony at times was both equivocal and vague.’’ In fact,

this court has previously determined that when there

is no physical evidence to support the allegations of

sexual assault, the significance of the prosecutorial
impropriety increased considerably. ‘‘[A]lthough there

exists evidence in the present case supporting the

defendant’s conviction despite the lack of direct physical evidence linking the defendant to the sexual assault

of the victim—namely, the victim’s testimony and the

testimony of her mother and cousin—without independent physical evidence to prove thatthe defendant sexually assaulted [the victim], or even that [the victim] had

been sexually assaulted at all, the significance of the

[prosecutor’s] improper conduct increases considerably.’’ State v. Angel T., supra, 292 Conn. 293. Similar

to the circumstances in Angel T., in the present case,

there was no physical evidence linking the defendant

to the sexual assault. There were also inconsistent statements made by the victim, and, in fact, the victim

refused to answer certain questions during her direct

testimony. The only other evidence on point concerned

the defendant’s statements to the police wherein he

denied that any of the incidents occurred or if something did happen, it was an accidental brushing. Considering the totality of the circumstances and the evidence

adduced at trial, we conclude that the state’s case was

not particularly strong.

The last Williams factor involves the strength of the

curative measures taken by the court. The state argues

that the court’s charge to the jury that it could not

consider the defendant’s failure to testify in its deliberations cured any defect in the prosecutor’s argument. We

are not persuaded. As we noted previously, no curative

instruction was given at the time the prosecutor uttered

the remarks. In State v. Maguire, supra, 310 Conn. 561,

we held that the general instructions to the jury were

not enough when ‘‘[a]lthough the trial court charged

the jury in its final instructions that the law prohibits

the prosecutor from offering her personal opinion as

to the credibility of any witness, the trial court gave

no curative instructions at the time of the improper

remarks, which, in our view, were relatively severe

. . . .’’ Similarly, in the present case, the prosecutor’s

remarks not only were severe but also constituted both

a statutory and constitutional violation, therefore, the

judge’s charge, which did not reference the specific

remarks but was general in nature, was ineffectual and

did not cure the impropriety of the prosecutor’s

remarks. The remarks were so egregious that, in the

absence of a strong curative instruction at the time

when the remarks were made, no general charge would

have sufficed. Therefore, we conclude that the curative

remarks made in the jury charge in the form of a general

statement based on the accused’s failure to testify, was

insufficient in this case.

In our analysis regarding whether the state has

proven that the remarks were harmless beyond a reasonable doubt, we acknowledge that the jury found the

defendant guilty of eight of the nine counts with which

he was charged. Our case law does suggest that in the
absence of evidence that the jury disregarded any of

the court’s instructions, we presume that the jury followed the instructions. State v. Ancona, 256 Conn. 214,

219, 772 A.2d 571 (2001). It may be argued that the fact

that the jury acquitted the defendant on one of the

charges supports a conclusion that the jury was able

to analyze all of the charges and weigh the evidence

against the defendant, rather than totally condemn him

for his failure to testify. We note, however, that a similar

argument was rejected in State v. Maguire, supra, 310

Conn. 562–63 n.13, wherein the defendant was found

not guilty on two counts. Although in our analysis we

do credit the state for this conclusion, on closer examination it is not as persuasive as it initially may appear.

The defendant was charged with a total of nine counts,

eight of which related to various types of sexual assault

and risk of injury charges for his alleged conduct relating to the victim. The ninth charge did not. The ninth

charge alleged, in relevant part, that the defendant ‘‘wilfully and unlawfully caused and permitted a child under

the age of sixteen to be placed in a situation that the

morals of said child were likely to be impaired, to wit:

witnessing [the defendant] being violent towards the

child’s mother . . . .’’ As the prosecutor stated in his

closing argument: ‘‘Now, count nine is the one count

that’s a little bit different. That is a risk of injury under

a—it’s the same statute number, which is § 53-21 (a)

(1), but it has to do with the child witnessing domestic

violence and—not domestic violence, but violent

actions by the defendant in the home.’’ The prosecutorial impropriety in the present case improperly

impugned the defendant’s credibility for not testifying

and bolstered the victim’s credibility as it related to the

central issue in the case—whether the sexual assaults

had taken place. Indeed, there were no statements made

by the defendant to the police regarding the ninth count.

Therefore, the prosecutor’s improper comments would

not have affected the jury’s deliberation on that count.

Accordingly, the fact that the defendant was acquitted

on an unrelated charge is not relevant to the consideration of whether the constitutional and statutory violation harmed the defendant on the charges in which

the jury was required to pit his testimony, through his

statements to the police, against the testimony of the

victim.

Therefore, we conclude that all of the Williams factors weigh in favor of the defendant. Similar to the

situation in State v. Maguire, supra, 310 Conn. 561, the

only factor in the Williams analysis favorable to the

state is defense counsel’s failure to object to the statements. This failure, however, is overcome by the egregiousness of the statements. Furthermore, we have

credited the state with the fact that the jury found the

defendant guilty of eight out of the nine charges. However, due to the difference between the first eight

charges on which the defendant was found guilty, and
the ninth charge on which he was acquitted, we do not

find this fact to be either strongly in favor of the state

or dispositive of the case and we arrive at a similar

conclusion as the court did in Maguire, when the defendant was found not guilty on two charges. Id., 562–63

n.13. Therefore, we are convinced that the state has

failed to meet its burden of proof that the statements

made by the prosecutor were harmless beyond a reasonable doubt.

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C. J., and PALMER, McDONALD and ROBINSON, Js., concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of sexual assault and the crime of risk of injury to a child, we decline

to identify the victim or others through whom the victim’s identity may be

ascertained. See General Statutes (Supp. 2016) § 54-86e.

** December 23, 2016, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 More specifically, the defendant was found guilty of 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 risk of injury to a child

in violation of General Statutes (Rev. to 2009) § 53-21 (a) (2), two counts

of risk of injury to a child in violation of General Statutes (Rev. to 2009)

§ 53-21 (a) (1), and one count each of sexual assault in the first degree in

violation of General Statutes § 53a-70 (a) (2), and sexual assault in the fourth

degree in violation of General Statutes § 53a-73a.

2 Although the defendant did not preserve his prosecutorial impropriety

claim by objecting at trial, such claims are nevertheless reviewable on

appeal. See State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012).

3 We acknowledge that in State v. Ruffin, 316 Conn. 20, 27–29, 110 A.3d

1225 (2015), a case decided after Payne, we used the general due process

standard when considering a prosecutorial misconduct claim that implicated

the fifth amendment right to remain silent. In light of our earlier decision

in Payne, however, we now clarify that under Payne, our analytical approach

in Ruffin was not correct. We note, however, that this oversight did not

impact the outcome of that appeal because we found that the prosecutor’s

statements were not improper, and thus it did not matter which party had

the burden to prove harm. Id., 32.

4 The fifth amendment to the federal constitution, although addressed to

the federal government, also applies to the states under the due process

clause of the fourteenth amendment. State v. Ruffin, 316 Conn. 20, 29 n.4,

110 A.3d 1225 (2015).

5 Section 54-84 (a) also prohibits a prosecutor from commenting on the

‘‘neglect or refusal of an accused party to testify . . . .’’ In the past, however,

we have treated the protections of the statute as being synonymous with

those of the fifth amendment. See, e.g., State v. Parrott, supra, 262 Conn.

293; State v. Haase, 243 Conn. 324, 332–33, 702 A.2d 1187 (1997), cert. denied,

523 U.S. 1111, 118 S. Ct. 1685, 140 L. Ed. 2d 822 (1998). To the extent that

the defendant argues that the prosecutor’s conduct violated § 54-84, the

defendant has not argued that the statute provides greater protection than

the fifth amendment, and, therefore, we do not separately analyze the defendant’s claims of impropriety under the statute, except insofar as we determine in our analysis that the prosecutor’s comments, in view of § 54-84,

were particularly egregious.

6 We note that the United States Supreme Court has held that a direct

comment by a prosecutor on the defendant’s silence will not violate the fifth

amendment when a ‘‘prosecutor’s reference to the defendant’s opportunity to

testify is a fair response to a claim made by [a] defendant or his counsel

. . . .’’ United States v. Robinson, 485 U.S. 25, 32, 108 S. Ct. 864, 99 L. Ed.

2d 23 (1988). There is no claim in the present case that the defendant invited

the challenged statements.

7

‘‘In determining whether prosecutorial misconduct was so serious as to

amount to a denial of due process, this court, in conformity with courts in

other jurisdictions, has focused on several factors. Among them are the

extent to which the misconduct was invited by defense conduct or argument

. . . the severity of the misconduct . . . the frequency of the misconduct
. . . the centrality of the misconduct to the critical issues in the case . . .

the strength of the curative measures adopted . . . and the strength of the

state’s case.’’ (Citations omitted.) State v. Williams, supra, 204 Conn. 540.

8 The trial court instructed the jury as follows: ‘‘I now want to discuss

the subject of credibility, by which I mean the believability of testimony.

You have observed the witnesses. The credibility or the believability of the

witnesses and the weight to be given to their testimony are matters entirely

within your hands. It is for you alone to determine their credibility. Whether

or not you find a fact proven is not to be determined by the number of

witnesses testifying for or against it. It is the quality and not the quantity

of testimony which should be controlling. As I previously indicated, a single

witness’ testimony may be sufficient to justify a conviction, provided, of

course, that such testimony satisfies you beyond a reasonable doubt that

the state has sustained its burden of proving each and every element of the

given charge or charges beyond a reasonable doubt.’’

9 We note in this case that, since the improprieties occurred during rebuttal

argument, defense counsel would not have had the opportunity to rebut

the arguments. Further, after closing argument, although defense counsel

objected to certain portions of the prosecutor’s argument, he did not object

to the statements regarding the failure of the defendant to testify.