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STATE v. A. M.—DISSENT

ZARELLA, J., with whom ESPINOSA, J., joins, dissenting. I disagree with the majority’s conclusion that

the defendant, A. M., is entitled to reversal of his convictions as a result of statements made by the assistant

state’s attorney (prosecutor) during closing arguments

at the defendant’s trial. The majority concludes that

these statements, in which the prosecutor noted that

the defendant had not testified, violated General Statutes § 54-84, as well as the defendant’s fifth amendment

right to remain silent,1 and that these violations were not

harmless. Although I agree that the statements violated

§ 54-84, I cannot conclude that the statements violated

the defendant’s fifth amendment rights because they

did not ‘‘suggest [that the] defendant’s silence [was]

evidence of guilt.’’(Emphasis in original; internal quotation marks omitted.) Portuondo v. Agard, 529 U.S. 61,

69, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000). Nevertheless,

even if the prosecutor’s statements did violate the fifth

amendment, I am convinced beyond a reasonable doubt

that any such violation was insignificant and had no

impact on the trial, and thus was harmless. Although

the prosecutor referenced the fact that the defendant

had not testified, she did not ask or imply that the jury

hold the defendant’s decision not to testify against him,

and the prosecutor did not otherwise convey to the jury

anything it had not already observed itself. Indeed, the

absence of any prejudice in this matter is demonstrated

by the lack of any objection from defense counsel to

the prosecutor’s comments or any request for a specific

curative instruction at trial. Moreover, any possibility

that the jury might use the defendant’s silence against

him as a result of the prosecutor’s comments was dispelled by the court’s instructions, in which the court

expressly directed the jury that it could not infer guilt

from the defendant’s decision not to testify. To conclude that the jury nevertheless misused the defendant’s

silence in the face of this instruction requires a conclusion that the jury disregarded the instruction. We presume, however, that the jury followed the court’s

instructions in the absence of evidence to the contrary;

see, e.g., State v. Ancona, 256 Conn. 214, 219, 772 A.2d

571 (2001); and, in the present case, there is no such

evidence to the contrary. Finally, although the majority

viewed the state’s case as weak—presumably making

the jury more susceptible to using improper considerations to decide the case—a review of the record dispels

any such conclusion. For these reasons, I am convinced

that the prosecutor’s statements had no impact on the

outcome of the trial and, thus, were harmless. Therefore, I respectfully dissent.

In analyzing the comments in the present case, I am

convinced that they did not influence the jury’s decision. Even if the prosecutor violated the defendant’s
fifth amendmentrights, the defendant is still not entitled

to a new trial if the state establishes that the violation

was harmless beyond a reasonable doubt. See, e.g.,

State v. Payne, 303 Conn. 538, 563–64, 34 A.3d 370

(2012). ‘‘[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

. . . .’’ (Citations omitted.) United States v. Hasting,

461 U.S. 499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983).

To determine whether the comments were harmful, we

must determine whether the comments prejudiced the

defendant. ‘‘The 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.) State v. Angel T., 292 Conn. 262, 287,

973 A.2d 1207 (2009). In determining whether the statements had any impact on the outcome, the statements

must be analyzed in the context of the trial as a whole.

See, e.g., State v. Luster, 279 Conn. 414, 442, 902 A.2d

636 (2006).

When the statements at issue in the present case are

examined in context, it becomes clear that they were

harmless. The prosecutor did not ask the jury, explicitly

or implicitly, to hold the defendant’s silence against him

but, instead,reminded the jury that it could considerthe

defendant’s statements to the police in evaluating the

defendant’s credibility. Specifically, in the first statement at issue, the prosecutor stated: ‘‘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 that

[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.’’ In the second statement

at issue, 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?’’

These statements, even if improper, were isolated

and not egregious. The prosecutor never asked the jury

to draw a negative inference from the defendant’s failure to testify or suggested that the jury should draw a

negative inference from his silence. Instead, the prosecutor’s statements were meant to convey to the jury

that, even though the defendant did not testify at trial,

his statements to the police were contained in the

record, and that the jury could use the statements to

assess the defendant’s credibility. Apart from these two
passing references, there were no other instances of

prosecutorial impropriety, and the comments at issue

were benign. ‘‘[M]oreover . . . [a defendant is not entitled to prevail when] the claimed [impropriety] was not

blatantly egregious and merely consisted of isolated and

brief episodes that did not reveal a pattern of conduct

repeated throughout the trial.’’ (Internal quotation

marks omitted.) State v. Luster, supra, 279 Conn. 442.

The prosecutor made no other allegedly improper statements during the trial, so her statements do not constitute a pattern of repeated conduct and thus do not

warrant reversal.2

Furthermore, the prosecutor did not tell the jurors

anything that they had not already perceived. The statements were made during closing arguments, and, at

that time, the jury would have been well aware that the

defendant had not testified and that no testimony from

the defendant would be forthcoming.

The prosecutor’s comments would not have influenced the jury for another reason, namely, that they

conveyed precisely the same information that the trial

court provided to the jury in its instructions on the law.

In its jury charge, the trial court expressly reminded

the jury that ‘‘the defendant has elected not to testify

in this particular case,’’ that the defendant ‘‘is under no

obligation to testify,’’ and that ‘‘[h]e has a constitutional

right that is protected by the [United States] as well as

the Connecticut constitutions not to testify . . . .’’ The

prosecutor’s comments mirrored this instruction.

Contrary to the majority’s assertion, the prosecutor’s

comments in this case are nothing like the comments

in the cases on which the majority relies, in which

reversible error was found. For example, in Griffin v.

California, 380 U.S. 609, 610–11, 615, 85 S. Ct. 1229, 14

L. Ed. 2d 106 (1965), both the prosecutor and the trial

court told the jury that it could draw inferences of guilt

from the defendant’s silence. In the present case, the

prosecutor merely sought to draw attention to the

defendant’s statements that were contained in the

record. The prosecutor made no assertion that the jury

should hold the defendant’s failure to testify against

him.

The majority incorrectly asserts that ‘‘the egregiousness of the remarks in this case [was] equal to, if

not greater than’’ the egregiousness of the prosecutor’s

remarks in State v. Maguire, 310 Conn. 535, 78 A.3d

828 (2013). This case is nothing like Maguire. In that

case, this court granted a new trial to the defendant,

Michael G. Maguire, because the prosecutor repeatedly

told the jury that Maguire was asking the jury to condone child abuse and to find that child abuse that happens in secret is legal, and also told the jury that defense

counsel was a liar. Id., 555, 576. In Maguire the prosecutor’s remarks were meant to inflame the passions of

the jurors, but, in the present case, the prosecutor’s
statements were merely an attempt to remind the jurors

of the evidence in the record that they could consider.

The majority also never explains how the prosecutor’s statements in the present case were harmful.

Instead, the majority concludes that the statements

were severe simply because the statements violated the

fifth amendment and § 54-84. The mere existence of a

constitutional violation, however, is not indicative of

harmful error. See, e.g., United States v. Hasting, supra,

461 U.S. 509. The majority never explains how the statements could have prejudiced the jury or even what the

prejudice is. In effect, the prosecutor stated to the jury

that the defendant’s credibility could still be assessed

despite the fact that he failed to testify, which is the

defendant’s right, by considering his statements to the

police. The two inferences that can be drawn from this

are, one, the jury cannot assess the defendant’s veracity

from the fact that he failed to testify, and, two, the jury

can assess the credibility of his statements to the police.

The lack of any prejudicial effect is further demonstrated by defense counsel’s failure to object to the

statements at trial. If the prosecutor’s statements were

truly as severe as the majority would have us believe,

surely, defense counsel would have moved for a mistrial3 or at least would have objected to these statements. After all, counsel made another unrelated objection to the prosecutor’s closing argument. The reason

there was no objection is simple: no one perceived the

statements as prejudicial.

When considering the impact of a prosecutor’s

improper comments, ‘‘this court consider[s] it highly

significant that defense counsel failed to object to any

of the improper remarks, request curative instructions,

or move for a mistrial. . . . A failure to object demonstrates that defense counsel presumably [did] not view

the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.’’ (Citation omitted; internal quotation marks omitted.) State

v. Luster, supra, 279 Conn. 443; see also State v. Angel

T., supra, 292 Conn. 289 (‘‘because the defendant failed

to object or to seek curative measures at trial . . .

this factor support[ed] the state’s contention that the

prosecutorial impropriety was not particularly severe’’).

Notably, after the prosecutor’s rebuttal argument,

defense counsel did make an unrelated objection after

the prosecutor showed the jury a trial transcript that

had not been entered into evidence. Despite raising

this objection to the state’s rebuttal, counsel made no

mention of the prosecutor’s comments regarding the

defendant’s decision not to testify. This strongly suggests that defense counsel did not view either of the

prosecutor’s comments as being prejudicial to the

defendant and, further, that the statements had no

meaningful impact on the jury. See, e.g., State v. Lemon,

248 Conn. 652, 665, 731 A.2d 271 (1999) (lack of objec-
tion to statements later challenged on appeal is evidence that counsel did not deem statements to be

prejudicial when they were made).

The majority places virtually no weight on defense

counsel’s failure to object to an impropriety that the

majority would now have us believe was ‘‘particularly

egregious.’’ Because we are able to review only a transcript of the words used at trial, we must rely on the

parties’ actions during the trial, and defense counsel’s

failure to object indicates that the prosecutor’s comments had no discernible impact on those in the courtroom who witnessed the argument as it unfolded. The

majority excuses defense counsel’s failure to object by

classifying the failure as a tactical decision. The majority claims that defense counsel may have chosen not

to object because counsel did not wish to draw the

jury’s attention to the prosecutor’s statements. There

simply is no rational reason why competent counsel

would have ignored these statements if they actually

were ‘‘particularly egregious.’’ If defense counsel did

not want to object in the presence of the jury because

he thought that it would highlight the fact that the

defendant did not testify, he could have objected after

the jury left the courtroom. In fact, defense counsel did

object to other aspects of the rebuttal argument after the

jury left the courtroom. Therefore, defense counsel’s

failure to object is ‘‘ ‘highly significant’ ’’ evidence that

the prosecutor’s statements were not severe. State v.

Luster, supra, 279 Conn. 443. Even if we assume that

defense counsel chose not to object for some inconceivable tactical reason, appellate review of prosecutorial

impropriety claims ‘‘is not intended to provide an avenue for the tactical sandbagging of our trial courts but,

rather, to address gross prosecutorial improprieties that

clearly have deprived a criminal defendant of his right

to a fair trial.’’ State v. Ceballos, 266 Conn. 364, 414–15,

832 A.2d 14 (2003).

Even if the prosecutor’s comments could have caused

harm, which they did not, the trial court’s instructions

dispelled that risk. Although defense counsel did not

object to the comments or ask for any curative instructions, the trial court, pursuant to § 54-84 (b), expressly

instructed the jury that it could ‘‘draw no unfavorable

inferences from the defendant’s choice not to testify in

this particular instance.’’ If the prosecutor’s statements

had some effect on the jury, the court’s instruction

cured that effect. In State v. Jones, 320 Conn. 22, 38–39,

128 A.3d 431 (2015), we concluded that general jury

instructions that directly addressed prosecutorial

improprieties ameliorated those improprieties. In fact,

in nearly all cases in which defense counsel failed to

object to and request a specific curative instruction in

response to a prosecutorial impropriety, and the court’s

general jury instruction addressed that impropriety, we

have found that the court’s general instruction cured

the impropriety. See, e.g., id.; State v. Luster, supra,
279 Conn. 446; 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). The court’s instructions

in the present case directly addressed the prosecutor’s

improper comments, unlike in the cases that the majority relies on, namely, Angel T. and Maguire, in which

the jury instructions did not address all aspects of the

prosecutorial improprieties.4

The jury instructions in the present case specifically

addressed the defendant’s failure to testify, informing

the jury that it was, as the prosecutor had stated, the

defendant’s constitutional right not to testify. The trial

court also instructed the jury that it was not allowed

to draw any adverse inference from the defendant’s

failure to testify. We do not assume, in the absence of

evidence to the contrary, that jurors will ignore the

court’s instructions. See, e.g., State v. Ancona, supra,

256 Conn. 219.5

The majority claims that ‘‘no general charge would

have sufficed’’ because the remarks were ‘‘so egregious

. . . .’’ For the foregoing reasons, I disagree with the

majority’s claim that the prosecutor’s remarks were

egregious. But for the fact that the comments were a

technical violation of § 54-84, they were not improper

at all, and, therefore, the court’s general jury instruction

completely cured the impropriety. The reason is simple:

the jury instructions and the statements by the prosecutor were correct statements of the law.

Finally, although the majority claims that the state’s

case was so weak that the prosecutor’s statements

likely impacted the jury’s decision despite any curative

instructions, a review of the record belies such a conclusion. The majority contends that the prosecutor’s statements were harmful because the state’s case was weak

and turned entirely on matters of credibility, such that

the prosecutor’s statements might have led the jury

to discredit the defendant and to find him guilty. The

majority, however, does not analyze the strength of

the state’s evidence in the present case. Instead, the

majority cites State v. Ceballos, supra, 266 Conn. 364,

in which we observed that ‘‘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.) Id., 416.

I disagree that Ceballos supports the majority’s broad

contention, namely, that a lack of physical evidence

necessarily makes the state’s case so weak that it automatically weighs in favor of the defendant. In Ceballos,

we also stated that the ‘‘absence of conclusive physical

evidence of sexual abuse does not automatically render

[the state’s] case weak . . . .’’ Id.

Moreover, my review of the trial evidence convinces

me that the state’s case was strong enough that the
comments would not have influenced the jury’s verdict

or impacted the outcome of the proceedings. Although

the outcome of the present case turned largely on the

credibility of the victim’s accusations and the defendant’s denials, the state presented evidence to support

the victim’s credibility and additional evidence to

impeach the truth of the defendant’s statements to the

police and the defendant’s general character.

The majority ignores the fact that the jury had a

substantial opportunity to evaluate the victim’s credibility on the basis of her in-court demeanor. The victim

testified on three separate occasions, and defense counsel was able to cross-examine her regarding all of the

allegations that she had made during her forensic interview. Defense counsel questioned the victim about each

specific allegation of abuse contained in the videorecorded interview, and the victim answered all of

defense counsel’s numerous questions. The state also

presented expert testimony indicating that it was not

unusual for a young child to be uncertain about precisely when she had been abused.

Later, defense counsel called the victim’s mother to

testify regarding the defendant’s good character, but

much of her testimony was contradictory. The victim’s

mother testified that she had never seen the defendant

‘‘be fresh around women’’ but later admitted that the

defendant had a history of violent behavior toward

women. Specifically, she acknowledged that she had

once called the police after the defendant punched her

in the face. She also testified that, on a separate occasion, another woman had told her that the defendant

was having an affair; when the defendant found out, he

went to the woman’s home and smashed her car windshield.

The testimony of the victim’s mother was also inconsistent with the defendant’s own statements to the

police. In his sworn statement to the police, the defendant claimed that he never had been alone in the home

with the victim since she made her first allegations.

Contrary to the defendant’s claim that he was never in

the home alone with the victim after August, 2009, the

victim’s mother stated that there were still times when

the defendant was alone with the victim.

The prosecutor also pointed out that the defendant’s

own statements to the police were contradictory. The

defendant claimed that he had not hugged or kissed

the victim since she was ‘‘very young . . . .’’ In the

very same statement, he said that, after the victim’s

mother had kicked him out of her home, he returned

to confront the victim about her allegations. The defendant then stated that, upon doing so, the victim apologized to him, they hugged, and then went to the mall

where he and the victim held hands.

Considering that defense counsel failed to object to
the prosecutor’s comments and that the trial court

instructed the jury that it could not consider the defendant’s decision not to testify, I am convinced beyond

a reasonable doubt that the prosecutor’s comments did

not impact the jury’s decision. The jury had before it

ample evidence from which to consider the credibility

of the victim and the strength of the defendant’s case.

The jury was able to observe the victim’s demeanor in

court during her testimony, including during extensive

cross-examination. Additionally, the state presented

evidence to discredit the victim’s mother’s description

of the defendant’s character and to impeach the credibility of the defendant’s own statements to the police.

For all of the foregoing reasons, I would conclude

that the prosecutor’s statements did not impact the

outcome of the trial and, thus, were harmless. Accordingly I would reverse the judgment of the Appellate

Court, and, therefore, I respectfully dissent.

1 The fifth amendment privilege against self-incrimination is made applicable to state prosecutions through the due process clause of the fourteenth

amendment. See, e.g., Malloy v. Hogan, 378 U.S. 1, 3, 84 S. Ct. 1489, 12 L.

Ed. 2d 653 (1964).

2 The majority asserts that these two statements were ‘‘two too many’’

and also asserts that it ‘‘could not condone even one violation of such an

extreme nature.’’ The majority concludes that the remarks were frequent

not because they were pervasive or repeated but, rather, because the prosecutor’s comments violated the fifth amendment and § 54-84. Such a conclusion turns the meaning of the word ‘‘frequent’’ on its head. The majority’s

position means that this factor will always support reversal, because even

a single violation would constitute a frequent occurrence.

3 Defense counsel was not reluctant to move for a mistrial when he

believed that doing so was appropriate. Throughout the course of the trial,

defense counsel moved for a mistrial on five different occasions.

4 The majority mentions that the court’s charge on credibility related

only to witnesses who testified at trial and not to the defendant’s written

statements to the police. This is irrelevant when determining the curative

effect of the court’s general jury instructions. The alleged impropriety was

the prosecutor’s reference to the defendant’s failure to testify, not that the

prosecutor asked the jury to examine the defendant’s written statements.

5 The jury’s decision to find the defendant not guilty of one of the charges

against him strongly indicates that the prosecutor’s remarks did not lead

the jury to condemn the defendant for his refusal to testify, and that the

jury instead properly applied the court’s instructions in reaching its verdict.

See, e.g., State v. Lucas, 63 Conn. App. 263, 278–79, 775 A.2d 338, cert.

denied, 256 Conn. 930, 776 A.2d 1148 (2001). The fact that the jury found

the defendant not guilty on some of the charges against him ‘‘clearly demonstrat[es] the jurors’ ability to filter out the allegedly improper statements

and make independent assessments of credibility.’’ State v. Ciullo, 314 Conn.

28, 60, 100 A.3d 779 (2014). Contrary to the majority’s assertion, the defendant’s acquittal is relevant because it shows that the jury did not blindly

condemn the defendant for his failure to testify.