State v. A. M., SC 19497

• Decision Date: 23 December 2016
• Docket Number: SC 19497
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. A. M.

324 Conn. 190

152 A.3d 49

STATE of Connecticut

v.A. M.^*

SC 19497

Supreme Court of Connecticut.

Argued September 16, 2016

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).

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

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 father to 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 not reveal 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 of the 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 prosecutor turned 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.

After resolving 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...