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STATE OF CONNECTICUT v. JOSEPH R. B.*

(AC 37808)

Lavine, Beach and West, Js.

Argued December 7, 2016—officially released May 30, 2017

(Appeal from Superior Court, judicial district of

Litchfield, Ginocchio, J.)

Naomi T. Fetterman, for the appellant (defendant).

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

with whom, on the brief, were David S. Shepack, state’s

attorney, and David R. Shannon, senior assistant state’s

attorney, for the appellee (state).
Opinion

BEACH, J. The defendant, Joseph R. B., appeals from

the judgment of conviction, rendered after a jury trial,

of one count of risk of injury to a child in violation of

General Statutes (Rev. to 2011) § 53-21 (a) (1). The

defendant claims that (1) the evidence adduced at trial

was insufficient to support his conviction and (2) certain comments made by the prosecutor violated his

fifth amendment right to remain silent. We affirm the

judgment of the trial court.

The following facts and procedural history are relevant. On September 27, 2011, at approximately 6:30

a.m., H, the defendant’s girlfriend, awoke and fed the

victim, the five month old son of H and the defendant.

At approximately 9 a.m., H left for work, leaving the

defendant as the victim’s sole caretaker. When she left

for work, the victim was ‘‘fine.’’

Despite the fact that H was not supposed to receive

telephone calls at work, the defendant telephoned H at

work at approximately noon to tell her that the victim

had caught his leg in the slats of the crib and it had

been twisted in the effort to free it, but he said that the

victim had not been injured. At approximately 3:30 p.m.,

H met the defendant at home, during a work break,

for a scheduled home visit with Rachel Rosa, a social

worker with the Department of Children and Families

(department). Rosa’s visit lasted about one-half hour,

and, during that time, Rosa did not notice any trauma

to the victim; she did notice that he was fussy and

appeared uncomfortable. The defendant told Rosa that

the victim had been fussy and that at approximately 2:30

p.m. the victim had finally fallen asleep. H attempted

unsuccessfully to alleviate the victim’s fussiness by

feeding him. She took the victim’s temperature, which

was normal, and the victim was given Tylenol. During

the visit, H held the victim and did not notice any deformity or obvious trauma to the victim’s leg.

D, the victim’s maternal grandmother, arrived at the

house while H, the defendant, Rosa and the victim were

present. D’s workday ended at 3:30 p.m. and she would

frequently babysit for the victim from 3:30 p.m. until H

could pick up the victim, usually around 9:30 p.m. The

defendant informed D that he could not watch the victim that night because he might have to work and was

waiting for a telephone call in that regard. The defendant told D that the victim ‘‘hadn’t been sleeping and

eating and was fussy’’ and explained that the victim

was teething. D placed the victim in the car seat and

noticed that he was ‘‘whining and crying’’ although he

usually was ‘‘[a] pretty happy baby.’’ D took the victim

to her residence. When D fed the victim a bottle, she

noticed a red mark ‘‘on his knee area’’ and she began

to rub the area, but stopped when the victim ‘‘screamed

very loud.’’ The victim also cried loudly when D put
him into his nighttime pajamas.

At approximately 9:45 p.m., H arrived at D’s residence

to take the victim home. At that time, D informed H

that the victim ‘‘had been really cranky’’ and that she

had noticed a spot on the victim’s leg. As soon as H

saw the victim she noticed that his leg was ‘‘in a frog

position.’’ H told D that she was going to take the victim

to the emergency room. When H put the victim in her

car, D noticed that the defendant was sitting in the

passenger seat of the car. When D asked the defendant

why he did not watch the victim if he did not have to

work, the defendant bowed his head and did not

answer.

Upon arriving at Charlotte Hungerford Hospital, H

informed the triage nurse that the defendant had told

her that at around noon the victim had been crying as

a result of having caught his left leg in the slats of his

crib and that the defendant had freed the leg. The triage

nurse immediately sent the child to Alison Tieman, an

emergency room nurse, who evaluated the victim. Upon

examining the victim’s left leg, Alison Tieman noticed

that it was ‘‘very obviously . . . drawn up, the baby

was not willing to straight[en] out his leg and there was

actually swelling noted . . . between his knee and

thigh area.’’ A physician took an X ray of the victim’s

left leg and found a displaced fracture of the left femur.

When Alison Tieman relayed this information to the

victim’s parents, H was ‘‘hysterically crying’’ and the

defendant was ‘‘sitting quiet.’’ The defendant explained

that at approximately noon he had noticed a line on

the victim’s thigh area that appeared to be swollen, but

the line had vanished.

Jason McIntyre, an officer with the Torrington Police

Department, was dispatched to Charlotte Hungerford

Hospital to investigate the injury. The defendant gave

a statement to McIntyre. The statement, written and

signed by the defendant, was admitted as a full exhibit

at trial. The defendant said in the statement that H had

left for work at approximately 9 a.m. He later fed and

played with the victim and placed him in his crib at

about 11:15 a.m. At about noon, the defendant noticed

that [the victim’s] ‘‘left leg was sticking out of the crib.’’

The defendant extricated the victim’s leg and ‘‘picked

him up to check on his leg.’’ The defendant noticed that

the victim had a red mark on the top of his leg, but he

did not notice any bruising. The defendant held the

victim ‘‘when I got his leg out because he was whining.’’

At 2:30 p.m., the defendant fed the victim some apple

juice. Rosa and H arrived around 3:30 p.m., and D took

the victim to her house. When H arrived at D’s house

later that night she noticed something wrong with the

victim’s left leg and took the victim to the hospital.

The victim, meanwhile, was transferred to Connecticut Children’s Medical Center, where he was treated.

He was also evaluated by the Suspected Child Abuse
and Neglect team (team). Nina Livingston, a physician

board certified in general pediatrics and child abuse

pediatrics, was the director of the team. She testified

at trial that the victim suffered a transverse fracture of

the left femur: ‘‘the bone was completely broken

through in two pieces . . . closer to the knee than to

the hip.’’ Bone disease was ruled out as the cause of

the injury. She explained that ‘‘a transverse fracture is

the result of a bending force. This could result from a

direct blow or from a bending force applied to the bone

in another fashion.’’ Livingston explained that injuries

are evaluated with reference to the child’s developmental level and by taking into account ‘‘what kinds of

trouble they can get into on their own.’’ She stated that

a five month old infant would not be able to cause this

type of injury to himself. When asked if it was the type

of injury that could result from the normal handling

of an infant, Livingston replied ‘‘absolutely not.’’ She

testified that this type of injury would not be expected

to result from a normal effort to remove a five month

old baby’s leg from a crib. Livingston further explained

that at the time of injury the baby would experience

significant pain. If, however, the leg were still for a

period of time, Livingston stated that the infant may

calm down and may even eat or intermittently sleep.

Once the leg was moved, however, the infant would

exhibit pain behavior such as crying or being excessively fussy. Livingston also noted that symptoms of

pain and swelling could go unnoticed for hours.

At about midnight on September 28, 2011, Michael

Pitruzzello, an investigator with the department,

received a telephone call from staff at Charlotte Hungerford Hospital stating that a five month old patient

at the hospital had a broken femur, that the explanation

given for the victim’s injury was suspicious, that the

injury was not consistent with the explanation provided, and that the child was being transported to Connecticut Children’s Medical Center. Pitruzzello

interviewed the victim’s parents. The defendant

explained to Pitruzzello that he lived in the house where

the victim resided and that he was the sole caretaker

of the victim from the time H left for work until she

returned at 3:30 p.m. He said that the victim had gotten

his leg stuck in the crib but that he had freed it with

relative ease. He did not offer an explanation to Pitruzzello as to how the injury had occurred.

On the morning of September 28, 2011, Kevin Tieman,

a detective with the Torrington Police Department,

interviewed the defendant at his residence. The defendant stated that although at one point the victim had

his leg caught in the slats of the crib, he did not notice

any injury. He said that he made a telephone call to H

and the victim then went to sleep. The defendant asked,

‘‘Well, what if it was an accident?’’ The defendant mentioned a second possible scenario in which he may have

leaned forward and put some pressure on the victim
but that the victim did not make any sound.

Following a trial, the jury found the defendant guilty

of risk of injury to a child. The court imposed a total

effective sentence of ten years incarceration, execution

suspended after five years, and five years probation

with special conditions. This appeal followed.

I

The defendant first claims that there was insufficient

evidence to support his conviction of risk of injury to

a child. He argues that there was no physical evidence

of the cause, the timing orthe identity of the perpetrator

of the injury, and that his conviction was based on pure

speculation.1 We reject his arguments.

‘‘When reviewing sufficiency of the evidence claims,

we impose a two part analysis. First, we construe the

evidence in the light most favorable to sustaining the

verdict. . . . Second, we determine whether, from that

evidence and all the reasonable inferences which it

yields, a [trier of fact] could reasonably have concluded

that the defendant was guilty beyond a reasonable

doubt. . . . In this process of review, it does not diminish the probative force of the evidence that it consists,

in whole or in part, of evidence that is circumstantial

ratherthan direct.’’(Citation omitted; internal quotation

marks omitted.) State v. Burrus, 60 Conn. App. 369,

372, 759 A.2d 149 (2000), cert. denied, 255 Conn. 936,

767 A.2d 1214 (2001).

General Statutes (Rev. to 2011) § 53-21 (a) provides

in relevant part: ‘‘Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life

or limb of such child is endangered, the health of such

child is likely to be injured or the morals of such child

are likely to be impaired, or does any act likely to impair

the health or morals of any such child . . . shall be

guilty of a class C felony . . . .’’ Section 53-21 (a) (1)

‘‘comprise[s] . . . two distinct prongs, the situation

prong and act prong . . . .’’ (Internal quotation marks

omitted.) State v. Owens, 100 Conn. App. 619, 635, 918

A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668

(2007). The defendant was charged under the ‘‘act’’

prong. ‘‘Under the act prong of our risk of injury statute

[t]he four elements the [fact finder] needed to find to

return a verdict of guilty are: (1) the victim was less

than sixteen years old; (2) the defendant committed an

act upon the victim;(3) the act was likely to be injurious

to the victim’s health . . . and (4) the defendant had

the general intent to commit the act upon the victim.’’

(Emphasis omitted; internal quotation marks omitted.)

State v. Patterson, 131 Conn. App. 65, 78–79, 27 A.3d

374 (2011), aff’d, 308 Conn. 835, 68 A.3d 83 (2013).

‘‘Specific intent is not a necessary requirement of [§ 53-

21 (a) (1)]. Rather, the intent to do some act coupled

with a reckless disregard of the consequences . . . of
that act is sufficient to [establish] a violation of the

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

Sorabella, 277 Conn. 155, 173, 891 A.2d 897, cert. denied,

549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).

The defendant argues that there was insufficient evidence to support the conclusion that he caused the

injury to the victim. He contends that the evidence

presented at trial did not establish beyond a reasonable

doubt the state’s theory that he handled the victim

roughly when the victim’s leg was caught between the

slats of his crib, thereby causing his femur to break.

The defendant argues that there was no evidence that

the injury had occurred during the time he was the

victim’s sole caretaker, that he was the perpetrator or

that he had the requisite intent. He argues that he ceased

being the victim’s sole caretaker at approximately 3:30

p.m. when Rosa and H arrived at the house, and that

Rosa changed the victim’s diaper twice and did not

observe any injuries to the victim, even though the

injury was described as obvious by the emergency room

nurse. He claims that D took the victim to her house

at approximately 3:30 p.m., but the injury was first discovered by H at approximately 9:45 p.m., when she

picked the victim up at D’s house. Neither Livingston

nor McIntyre were able to determine exactly how the

injury was caused.

Viewing the evidence in the light most favorable to

sustaining the verdict, we conclude that the jury reasonably could have found that the defendant was the perpetrator and that he possessed the requisite general intent.

There was evidence that the injury occurred sometime

between 9 a.m. and 3:30 p.m. on September 27, 2011,

during which time the defendant was the victim’s sole

caretaker. When H left for work around 9 a.m. she noted

that the victim was fine. During Rosa’s scheduled visit

at 3:30 p.m., the victim was inconsolably fussy.2 When

D took custody of the victim following Rosa’s scheduled

visit, she noticed a red mark on his knee area and he

screamed loudly when she touched it.

A second, consistent logical path supporting the finding of identity could have been followed. The jury reasonably could have found that the victim was unharmed

at 9 a.m. but seriously injured at 9:45 p.m. The defendant

and D were the only people who were alone with the

victim during that time. D described only usual caretaking events during the time in which she was the victim’s

sole caretaker and, according to her, no injury occurred

on her watch. The jury could have reasoned that the

injury occurred either while the defendant was the caretaker or while D was the caretaker, and if it credited

D’s testimony, then the injury must have occurred during the time in which the defendant was the sole caretaker of the victim. See State v. Andersen, 132 Conn.

App. 125, 143, 31 A.3d 385, 396 (2011) (whether witness’

testimony believable is question for jury), cert. denied,
305 Conn. 906, 44 A.3d 182 (2012).

In his statement to the police, the defendant admitted

that the victim’s left leg had become stuck in the crib.

The left femur, the evidence revealed, was fractured.

The defendant stated that he freed the victim’s leg, and

that later the victim was whining and had a red mark

on the top of his leg. Although the defendant did not

admit to having exerted much force on the victim’s leg,

the jury reasonably could have inferred that he had

caused the fracture, in light of the medical testimony

previously discussed.

Evidence of the defendant’s subsequent actions and

statements provided additional evidential support.

When D asked the defendant why he had not continued

to care for the child despite the fact that he did not

work that day, he did not answer and only bowed his

head. When the defendant and H were informed of the

nature of the injury, the defendant sat quietly. Throughout the course of the investigation into the victim’s

injury, the defendant told health care professionals,

investigators and police officers about the incident earlier that day when the victim’s leg was caught in the

crib. Livingston testified that a five month old child

could not have inflicted this type of injury on himself

and that the injury was caused by a ‘‘direct blow or

from a bending force.’’ When interviewed by the police

in his home the next day, the defendant offered a different explanation, stating that he may possibly have

leaned on the child.

The fact that the evidence as to the defendant’s identity as the perpetrator, aside from his statement to

police, was largely circumstantial does not undermine

the verdict. ‘‘There is no distinction between direct and

circumstantial evidence as far as probative force is concerned. . . . Indeed . . . circumstantial evidence

may be more certain, satisfying and persuasive than

direct evidence. . . . Where . . . the identification of

the defendant . . . is derived from circumstantial evidence, we examine the cumulative impact of a multitude of factors in order to determine whether the

identification of the defendant has been satisfactorily

established by the circumstantial evidence. . . . The

issue ofthe identification ofthe accused as the perpetrator of the crime is peculiarly one of fact to be resolved

by the jury. . . . If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable

doubt that an accused is guilty, that is all that is required

for a conviction.’’ (Citations omitted; internal quotation

marks omitted.) State v. Scales, 38 Conn. App. 225,

228–29, 660 A.2d 860 (1995).

We turn briefly to the issue of intent. As noted previously, specific intent is not an element of risk of injury

to a child; rather, only the general intent to do the

act with a reckless disregard of the consequences is

required. State v. Sorabella, supra, 277 Conn. 173. A
fact finder may rely on medical testimony to determine

intent. See State v. McClary, 207 Conn. 233, 244, 541

A.2d 96 (1988)(medical testimony used to establish that

infant’s injury caused by intentional shaking). ‘‘Because

direct evidence of the accused’s state of mind is rarely

available . . . intent is often inferred from conduct

. . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.’’(Internal quotation marks omitted.) State v. Otto,

305 Conn. 51, 66, 43 A.3d 629 (2012). In this case, Livingston testified that the injury could not have been selfinflicted and could not have resulted from normal handling; rather, it had to have been caused by a direct

blow or bending. This testimony, coupled with the

defendant’s admissions noted previously, is sufficient

evidential support for the conclusion that the defendant

had the general intent to perform the act of subjecting

the child’s leg to undue force with a reckless disregard

of the consequences.

II

The defendant next claims that the prosecutor made

improper comments during closing and rebuttal arguments, and thereby violated his right, guaranteed by

the fifth amendment to the United States constitution,

to remain silent. We disagree.

‘‘[W]hen the defendant claims that the prosecutorial

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

remain silent . . . the defendant initially has the burden to establish that a constitutional right was violated.

. . . If the defendant establishes the violation, however, the burden shifts to the state to prove that the

violation was harmless beyond a reasonable doubt.’’

(Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. A. M., 324 Conn. 190, 198,

152 A.3d 49 (2017).

We first must determine whetherthe defendant established that the prosecutor’s remarks during his closing

and rebuttal argument violated the defendant’s fifth

amendment right to remain silent.3

‘‘It 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.) State v. Ruffin, 144 Conn.

App. 387, 400, 71 A.3d 695 (2013), aff’d, 316 Conn. 20, 110

A.3d 1225 (2015). Additionally, our legislature enacted

General Statutes § 54-84 (a), which provides in relevant

part: ‘‘Any person on trial for crime shall be a competent

witness, and at his or her option may testify or refuse

to testify upon such trial. The neglect or refusal of an

accused party to testify shall not be commented upon

by the court or prosecuting official . . . .’’

The comments at issue do not directly refer to the

defendant’s decision notto testify. We employ the ‘‘natu-
rally and necessarily’’ standard ‘‘when it is unclear

whether the prosecutor’s comments at issue referred

to the defendant’s failure to testify . . . .’’ State v. A.

M., supra, 324 Conn. 202. Under this standard 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? . . . Further, in applying this

test, we must look to the context in which the statement

was made in order to determine the manifest intention

which prompted it and its natural and necessary impact

upon the jury. . . . Finally, [w]e also recognize that

the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the

heat of argument.’’ (Internal quotation marks omitted.)

State v. Parrott, 262 Conn. 276, 293, 811 A.2d 705 (2003).

We further note that ‘‘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.

. . . 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. . . . 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.’’

(Citations omitted; internal quotation marks omitted.)

State v. A. M., supra, 324 Conn. 203–204.

The defendant argues that the prosecutor repeatedly

urged the jury to draw an unfavorable inference from

his decision not to testify by telling the jury in different

contexts that the defendant ‘‘knows what he did.’’4 He

argues that the prosecutor improperly remarked on the

defendant’s failure to testify by implying that he was

the only person who could provide the missing information. He further argues that the remarks implied that

the defendant had knowledge of his guilt and that he

did not testify because he did not want the jury to

discover his guilt.

Viewing the remarks in the context of the evidence

presented at trial and the entirety of the prosecutor’s

argument, we think it unlikely that the jury interpreted

them as referring to the defendant’s failure to testify.5

The comments directed the jury’s attention to circumstantial evidence presented at trial. The prosecutortried

to persuade the jury that the defendant had the general
intent to do the act of removing the victim’s leg from

the slats of the crib in a forceful manner with a reckless

disregard for the consequences. See State v. Sorabella,

supra, 277 Conn. 173. The prosecutor’s comments that

the defendant ‘‘knew he used too much force,’’ that he

‘‘knows why he used way too much force,’’ that ‘‘he

did nothing about it,’’ and that he ‘‘compounded [his]

mistake by not telling [H]’’ addressed the defendant’s

intent in removing the victim’s leg from the crib and

could be viewed as styling the defendant’s admitted

behavior as consciousness of guilt. The comments were

based on evidence and did not draw attention to the

defendant’s failure to testify. The comments helped to

develop the state’s theory that the defendant’s action

in removing the child’s leg from the crib, which conduct

the defendant admitted in his statement to police, was

not an accident; rather, the defendant intended to exert

the force that was used.

The prosecutor discussed the defendant’s statement

to Rosa thatthe victim had gone to sleep and argued that

the statement showed a desire to conceal the victim’s

injury. The prosecutor mentioned the defendant’s

requesting that D watch the victim, despite his availability, to demonstrate his state of mind. Even if the comments conceivably were ambiguous—in that they

perhaps could be viewed as inviting refutation that

never occurred—they nonetheless were not improper.

‘‘[W]hen a prosecutor’s potentially improper remarks

are ambiguous, 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

a lengthy exhortation, will draw that meaning from the

plethora of less damaging interpretations.’’ (Internal

quotation marks omitted.) State v. Felix R., 319 Conn.

1, 9, 124 A.3d 871 (2015). The prosecutor referenced

only those statements that were made by the defendant

to others at the time of the events in question. We

conclude that the prosecutor’s comments regarding the

defendant’s knowledge that he had used too much force

when freeing the victim’s leg did not infringe on the

defendant’s constitutional right to remain silent.

The defendant also challenges another argument

made by the prosecutor during rebuttal: ‘‘[Defense

counsel] said to you, ‘We would all like to find out who

did this.’ And the state argues to you right now there’s

one person in this room who hopes we don’t find out

who did it. And he’s sitting right there. Because he

knows what he did, he knows that he handled that child

too roughly. He knows that resulted in a traumatic

injury to his child and he didn’t do anything about it,

he tried to cover it up.’’ (Emphasis added.) He argues

that the italicized remarks cast the defendant’s silences

as a ‘‘purposeful impediment to the trial’s truth-seeking

function’’ and that the jury would necessarily take these

remarks to be a comment on the defendant’s decision

not to testify.
During closing argument, defense counsel presented

the theory that someone other than the defendant

caused the injury and implied that the injury occurred

when the victim was in D’s care. Defense counsel stated:

‘‘We would all like to be able to know who actually

committed this crime.’’ During rebuttal argument, the

prosecutor responded to this statement. ‘‘It is well

established that [a] prosecutor may respond to the argument of defense counsel during rebuttal.’’ (Internal quotation marks omitted.) State v. Lindsay, 143 Conn. App.

160, 179, 66 A.3d 944, cert. denied, 310 Conn. 910, 76

A.3d 626 (2013). The comment, invited by defense counsel’s argument, was not improper. See State v. Singh,

259 Conn. 693, 716 n.22, 793 A.2d 226 (2002) (comments

invited by defense counsel’s closing argument not

improper).

The comment, far from ‘‘naturally and necessarily’’

directing attention to a failure to testify, was a reasonable rhetorical device. When the defense suggested that

everyone would ‘‘like to be able to know who actually

committed the crime,’’ the state’s response was that the

defendant, sitting right there, did not want everyone to

know who did it, because he was the one who did it.

The remark surely directed attention to the defendant,

but not ‘‘naturally and necessarily’’ to his failure to

testify.

The defendant argues that the prosecutor, through

a series of questions beginning with the word ‘‘why,’’

improperly commented on the defendant’s decision not

to testify by asking for explanations that only the defendant could provide.6

‘‘[C]alling the jury’s attention to

the fact that the defendant did not offer his own incourt explanation of the events . . . is not allowed.

. . . The test is whether the prosecutor’s comment

. . . calls on the defendant for information or for an

explanation that only the defendant could be expected

to supply. . . . If the comment does so, it is impermissible. . . . The reason for the constitutional and statutory rights given by the fifth and fourteenth

amendments and § 54-84 is to reduce jury speculation

as to why the defendant would remain silent. A comment that the defendant was without a reasonable

explanation or had no reasonable explanation to show

why he was innocent is not necessarily a comment that

the jury would naturally and necessarily interpret as

related to the defendant’s constitutional and statutory

right to decline to testify. A prosecutor also may comment on the failure of a defendant to support his factual

theories.’’ (Citations omitted; internal quotation marks

omitted.) State v. Smalls, 78 Conn. App. 535, 542–43,

827 A.2d 784, cert. denied, 266 Conn. 931, 837 A.2d

806 (2003).

An examination of the applicable case law shows

that questions posed in closing arguments, even when

answers perhaps could be provided by nontestifying
defendants, may, depending on the circumstances, be

permissible. If a comment or question logically refers

to the relative merits or weaknesses of the case, rather

than ‘‘naturally and necessarily’’ to the defendant’s failure to testify, it passes muster. See State v. Jarrett,

82 Conn. App. 489, 502, 845 A.2d 476 (jury would not

naturally and necessarily interpret prosecutor’s statement that ‘‘ ‘[t]here was no explanation why the defendant had [an insurance policy that was seized during

the search of the apartment] with his other personal

documents’ ’’ as comment on defendant’s failure to testify), cert. denied, 269 Conn. 911, 852 A.2d 741 (2004);

State v. Bowens, 24 Conn. App. 642, 650–51, 591 A.2d 433

(permissible to argue that money found on defendant

accused of selling drugs was unexplained), cert. denied,

220 Conn. 906, 593 A.2d 971 (1991); State v. Iovieno,

14 Conn. App. 710, 724–25, 543 A.2d 766 (permissible

to refer to ‘‘fingerprint that can’t be explained,’’ where

referring to lack of evidence), cert. denied, 209 Conn.

805, 548 A.2d 440 (1988); State v. Kluttz, 9 Conn. App.

686, 705–706, 521 A.2d 178 (1987) (permissible to question whether there was reasonable explanation for conduct, where reasonable to infer comment directed to

evidence).

The jury would not naturally and necessarily understand the prosecutor’s remarks to suggest that testimony from the defendant was the only means by which

his rhetorical questions could be answered.7 Rather, the

prosecutor’s comments were based on the evidence

presented and refer to a lack of explanation in the

evidence, other than guilt, for a range of behavior,

including telephoning H to inform her of an inconsequential incident, not telling Rosa about the victim’s

having caught his leg in the slats of the crib, remaining

in the car when H picked up the victim from D’s house,

and telling others that the victim was fussy but omitting

the detail from his statement to McIntyre. See, e.g.,

State v. Pires, 122 Conn. App. 729, 750, 2 A.3d 914 (2010)

(remarks referring to lack of explanation given by

defense did not infringe on defendant’s right not to

testify), aff’d, 310 Conn. 222, 77 A.3d 87 (2013). ‘‘A

comment that the defendant was without a reasonable

explanation or had no reasonable explanation to show

why he was innocent is not necessarily a comment that

the jury would naturally and necessarily interpret as

related to the defendant’s constitutional and statutory

right to decline to testify. A prosecutor also may comment on the failure of a defendant to support his factual

theories.’’ State v. Smalls, supra, 78 Conn. App. 543;

see also State v. Colon, 70 Conn. App. 707, 713, 799

A.2d 317 (prosecutor’s comments as to lack of explanation for defendant’s fleeing after crime constituted

attack on defendant’s theory of case, not improper comment on failure to testify), cert. denied, 261 Conn. 933,

806 A.2d 1067 (2002).

The prosecutor’s remarks implicitly asked the jury
to conclude that the defendant was guilty because of

a variety of behaviors. ‘‘[A defendant], by his failure to

testify, cannot insulate himself from general comment

on the weakness of his case, even though his failure

so to testify may be perceived by the jury as having

contributed to the general weakness about which comment is made.’’ State v. Magnotti, 198 Conn. 209, 220,

502 A.2d 404 (1985). We reject the defendant’s contention that prosecutor’s comments naturally and necessarily were interpreted by the jury to be a reference

to his failure to testify.

The judgment is affirmed.

In this opinion the other judges concurred.

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

victims of the crime of risk of injury to a child, we decline to use the

defendant’s full name or to identify the victim or others through whom the

victim’s identity may be ascertained. See General Statutes § 54-86e.

1 We reject the suggestion that the prosecutor’s comments during closing

argument are germane to the sufficiency issue.

2 During the mid-afternoon visit, neither Rosa nor H noticed any trauma

to the victim’s leg. Livingston testified that although the child would have

experienced significant pain at the time of the injury, the child could eat

or sleep shortly afterwards, but would still experience pain if the leg was

moved.

3 The fifth amendment to the United States constitution, which the fourteenth amendment makes applicable to the states, provides in relevant part:

‘‘No person . . . shall be compelled in any criminal case to be a witness

against himself . . . .’’

4

In support of his argument, the defendant highlights the following

remarks that were made by the prosecutor during closing and rebuttal

argument:

‘‘He knew he used too much force, he knew that child’s leg broke, he

heard that child scream and he thought, uh-oh, I better do some damage

control, I don’t know.’’

‘‘[N]ow he’s thinking uh-oh, I know what I did, I know the mistake I made

and the mistake I made—I compounded my mistake by not telling my

girlfriend . . . . So, what is he thinking, he knows why he did it, he knows

why he used way too much force.’’

‘‘Think about the audience, think about what happened that day, what

he knows happened . . . .’’

‘‘He was the caregiver present, he knew about it and he did nothing

about it.’’

‘‘Well, why is he saying to them, ‘Hey I just got him to go down.’ And the

[department] worker said, yeah, you know, he said that because he doesn’t

want them to go over and pick up that child or move that child around

because he knows that that’s going to cause the child to cry even more.

Because you move the leg around, the kid is going to start crying again—

the baby is going to start crying again. He knows that. But he says, no, I

may have to go to work. But then he never goes to work. He never goes to

work. So why did he not call the grandmother and say, I’ll come pick him

up or can you drop him back off I’m not going to work. I want to be with

my inconsolable, crying child. Because he doesn’t want to be because he

knows what he did—he doesn’t want to be around that child because he

knows what he did and he’s having major guilt feelings.’’

‘‘Yes, the police officers can’t tell you, they weren’t there, they can’t tell

you who did it. The [department] workers were not there . . . . You know,

we don’t have eye witnesses in these cases; it’s just the way it goes. . . .

If we had an eye witness we wouldn’t be here probably.’’

5 We have construed the phrase ‘‘he knows he did it’’ to be the prosecutor’s

effort to explain the defendant’s behavior at the time of the incident, that

is, that he behaved as he did because he knew he used too much force. We

take this occasion to stress that the state may not even indirectly highlight

a defendant’s failure to testify nor may a prosecutor suggest that he or she

has any private knowledge of the defendant’s guilt.

6 The defendant argues that the following remarks of the prosecutor

were improper:

‘‘Why did he call his . . . girlfriend that day? Why did he call his girlfriend

that day if it was a nonincident? If the child wasn’t hurt at all, if the child

didn’t scream out like Dr. Livingston testified a child would when it first
happened, why did he even call her? Because [H] testified that she’s not

supposed to get calls at work, she could get in trouble when she gets calls

at work. So why would he call and tell her about it if it was just a nonincident?

Think about this. Why would he call her when it happens all the time supposedly?’’

‘‘Why would he tell the mother about this, but then neglect to tell the

[department] worker that’s at the house about it?’’

‘‘If it was really such a nonincident and he didn’t hear that snap why

wouldn’t he say, well—you know, maybe something is wrong with the leg—

you know, maybe there’s some minor ligament tear, or a—something, a

strain. Why doesn’t he say that to her? He said that to the mother, he said

it to his girlfriend. Why doesn’t he tell it to the grandmother as well? The

grandmother is there, he tells her he’s been fussy all day, not napping, not

sleeping, teething, yes, teething. Why not tell her? She’s the one that’s taking

custody of that child. Hey, you might want to watch out there was this

incident—you know, keep an eye on it. Doesn’t tell her. How about the

whole thing that he told Detective Tieman some several days later about

there was an incident that day where he may have slipped or may have fell

or—and put too much weight down on the child. Remember how he told

Tieman that—Detective Tieman, several days later? Why didn’t he tell any

of those people there that day?’’ (Emphasis added.)

‘‘Why would he come all the way in the car, but not get out of the car

and come into the house? Odd.’’

‘‘The last thing I’d like you to think about is why did he give a statement

to Officer McIntyre, under oath, at that hospital and lie in that statement?

. . . . Why did he write that and why did he swear to it and why did he

sign his name under oath? Why did he tell everybody else that he was fussy,

not eating, not napping all day? Think about the audience, think about what

happened that day, what he knows that happened, what’s in the back of

his mind and who his audience is and when he’s talking to them?’’

7 A logical reading of the remarks in question is that they were merely

rhetorical devices to prompt the jurors to mull in their own minds why the

defendant said and did certain things, rather than part of an effort to direct

the jurors’ attention to a failure to testify. Viewed in this light, the issue has

no substance.