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STATE v. FELIX R.—CONCURRENCE

McDONALD, J., with whom PALMER, J., joins, concurring. The comments of Michael A. Pepper, the senior

assistant state’s attorney in the present case, clearly

conveyed a message to the jury that the defendant,

Felix R., should be blamed for compelling the victim

to endure the effects of an investigation into her allegations and to have to testify at trial about the basis of

those allegations. Pepper’s comments sought to invoke

sympathy for the victim while impugning the defendant’s constitutional right to confront witnesses against

him, to mount a defense, and to hold the state to its

burden of proving his guilt beyond a reasonable doubt.1

The comments were improper and egregious. In concluding that all but one of Pepper’s comments were not

improper because they were ambiguous, contrary to

the interpretation of the unanimous Appellate Court

panel; see State v. Felix R., 147 Conn. App. 206, 220–27,

83 A.3d 619 (2013); the majority disassembles the statements from the context in which they were made, and

then constructs a strained interpretation of each to

yield the ambiguity the majority creates. Of even greater

concern, the majority imports our rules of statutory

construction for assessing ambiguity that have no place

in evaluating whether the prosecution’s argument violated the defendant’s constitutional right to a fair trial.

Compounding these errors, the majority suggests that

multiple ambiguous statements could demonstrate ‘‘a

pattern’’ that would deprive the prosecutor’s comments

of a presumption of propriety, but inexplicably fails to

recognize what the collective force of Pepper’s statements in the present case manifestly reveals. Indeed,

this would seem to be a particularly inapt case to apply

such a presumption in light of the past occasions on

which this particular senior assistant state’s attorney

has been found to have exceeded the bounds of

proper argument.2

Therefore, I agree with the Appellate Court that Pepper committed prosecutorial impropriety during the

course of closing argument. I part company with the

Appellate Court, however, with respect to the question

of whether the improprieties deprived the defendant of

a fair trial. In resolving that question, ‘‘we consider: (1)

the extent to which the [impropriety] was invited by

defense conduct or argument; (2) the severity of the

[impropriety]; (3) the frequency of the [impropriety];

(4) the centrality of the [impropriety] to the critical

issues in the case; (5) the strength of the curative measures adopted; and (6) the strength of the state’s case.’’

(Internal quotation marks omitted.) State v. Angel T.,

292 Conn. 262, 287, 973 A.2d 1207 (2009). I agree with

the Appellate Court that the first, second, and fourth

factors weigh in the defendant’s favor. See State v. Felix

R., supra, 147 Conn. App. 228–29. With respect to the
third and fifth factors, as the Appellate Court recognized, the impropriety was limited to closing argument

and no curative measures were taken because the

defendant raised no objection. Id.

I am not persuaded, however, that the Appellate

Court gave due weight to the final factor, the strength

of the state’s case. The victim reported the defendant’s

abuse to her paternal aunt in late 2007, or early 2008,

well before the defendant alleges that he confronted

the victim about herinvolvement with a boy, his claimed

motive for her May, 2009 reports of abuse to her maternal aunt and guidance counselor. The victim’s mother

found the earlier accusation sufficiently credible that

she confronted him about it. Most significantly, the

defendant’s response to questioning by Detective John

Ventura of the Wallingford Police Department manifestly reveals the defendant’s lack of credibility and

consciousness of guilt. The defendant’s excited and

extremely nervous reaction to Ventura’s questions

about whether the defendant had purchased a pregnancy test and ‘‘morning after’’ pill for the victim, and

his false answers to those questions, was reflective of

guilt. No reasonable jury would find credible the defendant’s subsequent admission to Ventura that he had lied

about such matters when being investigated for abuse

because he was embarrassed that the victim was having

unprotected sex. Indeed, the defendant was not too

embarrassed to level that same accusation against the

victim when previously confronted by social workers

with the Department of Children and Families. Therefore, despite the fact that certain remarks during closing

argument were clearly egregious, I am compelled to

conclude that there was not a reasonable likelihood

that the jury’s verdict would have been different absent

the improper remarks, in light of the defendant’s own

conduct, the constancy of accusation evidence, and the

victim’s testimony.3 See State v. Long, 293 Conn. 31, 37,

975 A.2d 660 (2009) (‘‘[t]he question of whether the

defendant has been prejudiced by prosecutorial [impropriety] . . . depends on whether there is a reasonable

likelihood that the jury’s verdict would have been different absent the sum total of the improprieties’’ [internal

quotation marks omitted]).

Despite this conclusion, I take this opportunity to

address the significant flaw in the majority’s approach

to the question of ambiguity. ‘‘[W]hen a defendantraises

on appeal a claim thatimproperremarks by the prosecutor deprived the defendant of his constitutional right

to a fair trial, the burden is on the defendant to show,

not only that the remarks were improper, but also that,

considered in light of the whole trial, the improprieties

were so egregious that they amounted to a denial of

due process.’’ State v. Payne, 303 Conn. 538, 562–63,

34 A.3d 370 (2012). At best, this should mean that the

defendant must demonstrate that it is more likely than

not that the remarks were improper. As such, the defen-
dant would meet his burden by showing that it is more

likely than not that the jury would have understood the

comments to intimate that the jury could or should

decide the case on the basis of improper considerations.

Thus, irrespective of whether there is a plausible construction of the prosecutor’s comments that could state

a proper argument, unless that meaning is equally or

more likely to be adopted by the jury than the one

stating an improper argument, the defendant should

meet his burden of proof.

The majority takes a different tact. It concludes that

no impropriety arises when a prosecutor’s remarks

could be viewed as ambiguous, unless there is a clear

(and apparently overwhelming) pattern of such

remarks. To determine whether such an ambiguity

exists, the majority deems our rules of statutory construction the proper measure. This approach raises both

substantive and pragmatic concerns.

As a substantive matter, it imposes a greater burden

on the defendant than is required. Under our rules of

statutory construction, an ambiguity arises whenever

statutory language is subject to more than one plausible

interpretation. See State v. Pond, 315 Conn. 451, 468,

108 A.3d 1083 (2015) (‘‘[b]ecause the statutory language

is subject to multiple, plausible interpretations, and it

does not expressly address orresolve the certified question, [General Statutes] § 53a-48 [a] is facially ambiguous’’); Commissioner of Correction v. Freedom of

Information Commission, 307 Conn. 53, 68, 52 A.3d

636 (2012) (‘‘[b]ecause we believe that both of these

interpretations are plausible, we conclude that the language of the first sentence of 8 C.F.R. § 236.6 is ambiguous’’); State v. Johnson, 301 Conn. 630, 650, 26 A.3d 59

(2011) (‘‘[w]e conclude that, because both interpretations are plausible, the statute is ambiguous’’); State v.

Orr, 291 Conn. 642, 654, 969 A.2d 750 (2009) (‘‘our case

law is clear that ambiguity exists only if the statutory

language at issue is susceptible to more than one plausible interpretation’’). Ambiguity, as a matter of statutory

construction, does not require two or more equally

reasonable interpretations. Thus, under the majority’s

approach, any plausible construction will defeat the

defendant’s claim of impropriety, even if the defendant’s interpretation is by far the more reasonable one.

In effect, the majority requires the defendant to prove

beyond a reasonable doubt that an impropriety

occurred by requiring the defendant to demonstrate

that his is the only plausible meaning of the challenged remarks.

As a practical matter, the lesserthreshold for ambiguity in statutory construction is inappropriate because

that question serves a differentfunction than ourinquiry

in the present case. ‘‘When presented with a question

of statutory construction, [o]ur fundamental objective

is to ascertain and give effect to the apparent intent
of the legislature.’’ (Internal quotation marks omitted.)

Desrosiers v. Diageo North America, Inc., 314 Conn.

773, 782, 105 A.3d 103 (2014). Moreover, a rule for

determining whether statutory text is ambiguous is simply intended to resolve the threshold question of

whether it is appropriate to resort to extratextual

sources to ascertain the statute’s intended meaning.

See General Statutes § 1-2z; State v. Johnson, supra,

301 Conn. 650. By contrast, in considering a claim of

improper argument to the jury, we are not concerned

with what the prosecutor intended to say, but rather

the effect of those remarks on the manner in which the

jury decides the case. See State v. Paul B., 315 Conn.

19, 36, 105 A.3d 130 (2014) (‘‘[t]he fairness of the trial

and not the culpability of the prosecutor is the standard

for analyzing the constitutional due process claims of

criminal defendants alleging prosecutorial [impropriety]’’ [internal quotation marks omitted]). Indeed, it is

because rules of statutory construction are intended to

address a fundamentally different concern than the one

before us that they yield a result that is inconsistent

with the proper burden of proof in this case.

The majority’s reliance on a statement by the United

States Supreme Court regarding ambiguity in prosecution argument, which previously has been cited by this

court, does not support the majority’s approach. When

considering a claimed violation of due process due to

improper prosecution argument, the United States

Supreme Court observed: ‘‘The consistent and repeated

misrepresentation of a dramatic exhibitin evidence may

profoundly impress a jury and may have a significant

impact on the jury’s deliberations. Isolated passages of

a prosecutor’s argument, billed in advance to the jury

as a matter of opinion not of evidence, do not reach

the same proportions. Such arguments, like all closing

arguments of counsel, are seldom carefully constructed

in toto before the event; improvisation frequently

results in syntax left imperfect and meaning less than

crystal clear. While these general observations in no

way justify prosecutorial misconduct, they do suggest

that a court should not lightly infer that a prosecutor

intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy

exhortation, will draw that meaning from the plethora

of less damaging interpretations.’’ (Emphasis added;

internal quotation marks omitted.) Donnelly v. DeChristoforo, 416 U.S. 637, 646–47, 94 S. Ct. 1868, 40 L. Ed.

2d 431 (1974). The majority relies on the emphasized

language to conclude that no impropriety will occur if

a statement is subject to more than one interpretation,

one of which is not improper. Donnelly does not stand

for such a proposition. Rather, Donnelly made clearthat

the comment’s ambiguity was relevant to determining

whether the comment would have deprived the defendant of a fair trial, not whether the comment was

improper. See id., 647–48 (‘‘[t]he result reached by the
[United States] Court of Appeals [for the First Circuit]

in this case leaves virtually meaningless the distinction

between ordinary trial error of a prosecutor and that

sort of egregious misconduct held . . . to amount to

a denial of constitutional due process’’ [citation omitted]); see also id., 645 (‘‘[T]he prosecutor’s remark here,

admittedly an ambiguous one, was but one moment in

an extended trial and was followed by specific disapproving instructions. Although the process of constitutional line drawing in this regard is necessarily

imprecise, we simply do not believe that this incident

made [the] respondent’s trial so fundamentally unfair

as to deny him due process.’’); id., 648 n.23 (‘‘We do

not, by this decision, in any way condone prosecutorial

misconduct, and we believe that trial courts, by admonition and instruction, and appellate courts, by proper

exercise of their supervisory power, will continue to

discourage it. We only say that, in the circumstances

of the case, no prejudice amounting to a denial of constitutional due process was shown.’’). The court focused

on the due process issue even though the defendant’s

interpretation, while plausible, had been viewed by

lower courts as speculative and illogical. See id., 643–45.

Federal courts have since typically relied on Donnelly

in making a determination of whether ambiguous prosecution argument deprived the defendant of a fair trial.

See, e.g., Littlejohn v. Trammell, 704 F.3d 817, 837–38

(10th Cir. 2013); United States v. Nicolo, 421 Fed. Appx.

57, 62 (2d Cir.), cert. denied, U.S. , 132 S. Ct.

338, 181 L. Ed. 2d 212 (2011); Hein v. Sullivan, 601

F.3d 897, 916 (9th Cir. 2010), cert. denied, U.S. ,

131 S. Ct. 2093, 179 L. Ed. 2d 890 (2011); United States

v. Two Elk, 536 F.3d 890, 907 (8th Cir. 2008); but see

United States v. Stinefast, 724 F.3d 925, 930 (7th Cir.

2013) (‘‘[g]iven that the comments at issue are ambiguous at best, we are not inclined to find that the prosecutor’s statement was clearly improper’’); United States

v. Rollness, 320 Fed. Appx. 797, 798 (9th Cir.) (‘‘[t]he

first [challenged] statement is ambiguous when considered in context, and therefore does not rise to the level

of misconduct’’), cert. denied, 558 U.S. 956, 130 S. Ct.

445, 175 L. Ed. 2d 287 (2009).

Although this court has cited Donnelly in connection

with a determination of whether any impropriety

occurred, we have relied on it to reject a damaging

interpretation that was not reasonably likely to be

adopted by the jury. See State v. Ciullo, 314 Conn. 28,

48, 100 A.3d 779 (2014) (concluding that prosecutor’s

isolated comment, in context, would not have been

reasonably construed as denigrating defense counsel);

State v. Warholic, 278 Conn. 354, 367–68, 897 A.2d 569

(2006) (concluding that prosecutor’s statement was

argument for reasonable inference that jury could have

drawn from evidence adduced at trial, rather than statement of prosecutor’s personal opinion about defendant’s guilt, because ‘‘[w]hen the statement is read in
context, the prosecutor’s assertion was based on the

evidence regarding the behavioral patterns of sexually

abused children and [the complainant’s] own testimony

of the sexual assaults’’); State v. Reynolds, 264 Conn.

1, 186 and n.166, 836 A.2d 224 (2003) (concluding that,

‘‘[a]lthough we acknowledge that the argument of the

state’s attorney on this point was not a model of clarity,

we are not persuaded that the jury was likely to have

understood it as the defendant contends’’), cert. denied,

541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004);

State v. Haase, 243 Conn. 324, 335–36, 702 A.2d 1187

(1997) (concluding that defendant’s interpretation was

not one that jury naturally and necessarily would have

adopted because it was speculative and lacking context,

whereas state’s proper purpose was ‘‘apparent’’ and

made clear by assistant state’s attorney’s prompt

response to defendant’s objection), cert. denied, 523

U.S. 1111, 118 S. Ct. 1685, 140 L. Ed. 2d 822 (1998);

State v. Marra, 222 Conn. 506, 533–35, 610 A.2d 1113

(1992) (This court concluded that the challenged statements ‘‘plainly’’ concerned a matter different than the

defendant’s failure to testify, and that, ‘‘[a]lthough it is

possible that the jury drew [an improper] conclusion,

such a strained interpretation of the state’s argument

by the jury would be neither necessary nor natural.

. . . We believe the challenged remarks on rebuttal

could only be reasonably interpreted as commentary by

the prosecutor on the overall quality of the defendant’s

evidence and not as calling specific attention to the

failure of the accused to testify.’’ [Citations omitted;

internal quotation marks omitted.]); State v. Negron,

221 Conn. 315, 325, 603 A.2d 1138 (1992) (This court

concluded ‘‘that the prosecutor’s remarks would reasonably have been interpreted by the jury, not as a

comment on the defendant’s failure to testify, butrather

to have been an observation that the defendant, who

knew what had happened, had informed three others

that he had shot someone . . . that the three in turn

had testified as to what they had been told, and that the

jury, therefore, had forits consideration the defendant’s

own account of what had transpired. That, indeed,

appears to be the more cogent construction to be attributed to the prosecutor’s argument.’’).4 Thus, Donnelly

does not support the majority’s approach in the present case.

The question, therefore, is what is the proper

approach when a prosecutor’s remarks are susceptible

to more than one interpretation, one of which is

improper. For the reasons previously stated, the inquiry

must focus on the jury’s perception of the remarks and

not the prosecutor’s intention in making them. Moreover, the interpretation must be more than simply plausible, but one that the jury is reasonably likely to adopt.

At the two polar extremes—where the jury clearly is

unlikely or likely to adopt one interpretation—the issue

of impropriety is readily determined. In between these
polar extremes are cases in which there is more than

one reasonable interpretation. In such cases, it is reasonably possible that the jury understood the remark

to encourage it to decide the case on an improper basis.

Although the defendant bears the burden of proving

that it is more likely than not that an impropriety

occurred, for the reasons that follow, I would assume

impropriety in such cases and address the effect of

the ambiguity in the second step in our prosecutorial

impropriety analysis. See State v. Taft, 306 Conn. 749,

762, 51 A.3d 988 (2012) (two step analytical process

considers ‘‘[1] whether [impropriety] occurred in the

first instance; and [2] whether that [impropriety]

deprived a defendant of his due process right to a fair

trial’’ [internal quotation marks omitted]). By deeming

remarks proper that reasonably could be understood

by the jury as advancing an improper argument, we

would encourage prosecutors to couch argument in

ambiguous language to avoid admonishment, without

reducing the risk that the jury may have interpreted

the comments as directing it to decide the case on an

improper basis. Because ‘‘[t]he prosecutor, as a representative of the state, has a duty of fairness that exceeds

that of other advocates’’; (internal quotation marks

omitted) State v. Payne, 260 Conn. 446, 452, 797 A.2d

1088 (2002); we should deem argument improper when

it is crafted in terms that are readily susceptible to

misinterpretation for an improper purpose. Indeed,

when argument is equally likely to be interpreted in a

damaging way as a proper way, the defendant may not

have met his burden of proof, but such argument should

not be characterized as proper. By deeming such ambiguous comments improper, we put the prosecutor on

notice that a pattern of such obfuscation, even if insufficient to give rise to grounds for reversal on due process

grounds in a particular case, could constitute grounds

for reversal under the exercise of our supervisory

authority in the future. See, e.g., id., 450–52.

In considering whether a due process violation has

occurred, it makes sense to consider the nature of the

ambiguity (plausibly, reasonably, or likely to be understood in damaging way) in connection with factors

addressing the frequency and severity of the impropriety, as well as the effect of curative instructions. See,

e.g., Muhammad v. McNeil, 352 Fed. Appx. 371, 375–76

(11th Cir. 2009) (stating in connection with second step

in prosecutorial impropriety analysis: ‘‘[i]n determining

whether arguments are sufficiently egregious to result

in the denial of due process, we consider factors including: [1] whether the remarks were isolated, ambiguous,

or unintentional; [2] whether there was a contemporaneous objection by defense counsel; [3] the trial court’s

instructions; and [4] the weight of aggravating and mitigating factors’’ [emphasis added; internal quotation

marks omitted]), cert. denied, 559 U.S. 1052, 130 S. Ct.

2350, 176 L. Ed. 2d 568 (2010); United States v. Cabal-
lero, 277 F.3d 1235, 1245 (10th Cir. 2002) (concluding

in due process analysis that ‘‘we find it unlikely that

the prosecutor’s single, ambiguous remark substantially

influenced the jury in light of the overwhelming evidence presented against the [defendants]’’). Under such

a framework, a determination of whether the ambiguous remarks were frequent would properly focus on the

likely effect of the remarks instead of the prosecutor’s

intention in making them. Moreover, curative instructions would be relevant to whether any ambiguity was

sufficiently dispelled. Although analyzing ambiguity

under either step of our analysis likely would yield the

same result, because the defendant still must prove that

it is more likely than not that the jury adopted the

adverse interpretation, I am persuaded that analyzing

all but the most obvious cases under the second step

is most faithful to vindicating due process concerns.

In the present case, however, Pepper’s remarks

clearly were improper, but did not deprive the defendant of a fair trial. Accordingly, I join the majority only

insofar as it reverses the judgment of the Appellate

Courtreversing the defendant’s judgment of conviction.

I respectfully concur.

1

In addition to a comment referring to matters not in evidence, which

the majority agrees was improper, most significantly, Pepper stated that

since the day the victim confided in her guidance counselor, the victim has

‘‘been in foster care, but that didn’t end the trauma, ladies and gentlemen.

She was interviewed by strangers. She was poked and prodded by doctors

and nurses. She had a miscarriage. And she had to relive the whole experience

here, facing you and the defendant, and telling you what happened to her

over the period of four years. And she had to recite to you who she had

sex with and who she hasn’t, because of what that man did to her and said

about her during the investigation of this case. I had to ask her . . . did

you ever post a photograph of yourself on the web with a penis in your

face? I had to ask her that question in front of strangers, because of what

that man said and did to her.’’ (Emphasis added.)

In rebuttal argument, Pepper gave his personal opinion about the defendant’s guilt when he further stated: ‘‘Every time he slandered her, we find

out it’s not true. Why? Why this campaign of disinformation against his

daughter? Well, I submit, ladies and gentlemen, what would you expect from

someone who molests a twelve year old, even your own daughter? I submit,

ladies and gentlemen, he was trying to deceive and deflect the investigation

of this case from the very beginning.’’ (Emphasis added.)

2 See State v. Ceballos, 266 Conn. 364, 367, 832 A.2d 14 (2003) (reversing

judgment on due process grounds due to improper conduct by Pepper during

questioning of witnesses and closing argument); State v. Payne, 260 Conn.

446, 447–49, 797 A.2d 1088 (2002) (reversing judgment under supervisory

authority due to improper comments by Pepper during closing argument);

State v. Butler, 255 Conn. 828, 829–30, 769 A.2d 697 (2001) (affirming Appellate Court’s judgment reversing conviction on due process grounds due to

improper comments by Pepper during closing argument); see also State v.

Moody, 77 Conn. App. 197, 217–18, 822 A.2d 990 (concluding that Pepper

improperly asked defendant to comment on veracity of other witnesses but

concluding that impropriety did not deprive defendant of fair trial), cert.

denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct.

831, 157 L. Ed. 2d 714 (2003); State v. Lacks, 58 Conn. App. 412, 422–24,

755 A.2d 254 (recognizing that Pepper improperly commented on credibility

of witnesses in closing argument but concluding that remarks were not so

pervasive or egregious to have violated defendant’s right to fair trial), cert.

denied, 254 Conn. 919, 759 A.2d 1026 (2000).

3

In its responsive brief to this court, the defendant summarily suggests

that this court could affirm the Appellate Court’s judgment reversing the

defendant’s conviction on the alternative basis of this court’s supervisory

authority. The defendant did not file a statement of an alternative ground
for affirmance, and the state did not have notice to address this claim in

its main brief. Therefore, I decline to address whether reversal is warranted

on this alternative ground. Had such a claim been raised and adequately

briefed, the past history of the senior assistant state’s attorney may have

weighed heavily in favor of the exercise of such authority.

4 To address the specific concern of whether the prosecutor improperly

has commented on the defendant’s failure to testify versus whether the

prosecutor has properly and reasonably commented on the defendant’s

failure to rebut the state’s evidence, courts have adopted the following

standard: ‘‘In determining whether a prosecutor’s comments have

encroached upon a defendant’s right to remain silent, we ask: Was the

language used manifestly intended to be, or was it of such character that

the jury would naturally and necessarily take it to be a comment on the

failure of the accused to testify?’’ (Internal quotation marks omitted.) State

v. Ruffin, 316Conn. 20, 29, 110A.3d 1225 (2015). The ‘‘naturally and necessarily’’ standard has been limited to this particular concern and not extended

to other alleged impropriety in argument. See, e.g., State v. Grant, 286 Conn.

499, 537–47, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L.

Ed. 2d 200 (2008); State v. Rowe, 279 Conn. 139, 144–61, 900 A.2d 1276

(2006); State v. Satchwell, 244 Conn. 547, 563–72, 710 A.2d 1348 (1998); State

v. Crump, 145 Conn. App. 749, 754–61, 75 A.3d 758, cert. denied, 310 Conn.

947, 80 A.3d 906 (2013); State v. Johnson, 107 Conn. App. 188, 199–202, 944

A.2d 416, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008); State v. Palmer,

78 Conn. App. 418, 423–28, 826 A.2d 1253, cert. denied, 266 Conn. 913, 833

A.2d 465 (2003).