State v. PEDRO S.
Decision Date | 01 February 2005 |
Docket Number | No. 24096.,24096. |
Citation | 865 A.2d 1177,87 Conn.App. 183 |
Court | Connecticut Court of Appeals |
Parties | STATE of Connecticut v. PEDRO S. |
Arnold V. Amore II, special public defender, for the appellant (defendant).
Theresa Anne Ferryman, senior assistant state's attorney, with whom, on the brief, was Kevin T. Kane, state's attorney, for the appellee (state).
FOTI, DiPENTIMA and FRANCIS X. HENNESSY, Js.
The defendant, Pedro S., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1), sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1), risk of injury to a child in violation of General Statutes § 53-21(a)(2) and sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(2).2 The defendant claims that (1) prosecutorial misconduct deprived him of a fair trial and (2) the evidence did not support the jury's verdict. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On December 24, 2001, the victim was thirteen years old. She lived in New Haven with her mother, an older sister and a younger brother. Her father, the defendant, was divorced from the victim's mother and lived in New London. The defendant routinely spent time with the victim away from her home and, on December 24, 2001, drove her and her brother to his apartment, where they stayed the night.
Sometime during the night, the victim, who was asleep on a sofa in the defendant's living room, awoke to discover the defendant touching her. The victim attempted to push the defendant away, but he did not leave her alone. The defendant pulled the victim's pants down and performed cunnilingus on her.3 The victim kicked and struck the defendant in an effort to resist his assault. The defendant told the victim not to tell anyone what he had done. The defendant told the victim that she did not "want him to go to jail." As a result of the defendant's actions, the victim sustained, among other injuries, bruises on her legs. The defendant drove the victim and her brother home on December 25, 2001, and the victim reported the incident to her older sister and to her mother. The victim sought medical assistance at Yale-New Haven Hospital, where medical personnel examined her. The victim thereafter reported the incident to the New London police. The defendant's arrest followed. Additional facts will be set forth as necessary.
The defendant first claims that prosecutorial misconduct deprived him of a fair trial. The defendant concedes that he did not preserve his claim at trial. He argues that appellate review is warranted under (1) the plain error doctrine, codified in Practice Book § 60-5, (2) the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or (3) the exercise of our supervisory powers. We will review the claim following the analytic approach set forth by our Supreme Court in State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). In Stevenson, our Supreme Court enunciated a new analytical approach to reviewing unpreserved claims of prosecutorial misconduct. The court held that "following a determination that prosecutorial misconduct has occurred, regardless of whether it was objected to, an appellate court must apply the ... factors [set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)] to the entire trial." State v. Stevenson, supra, at 575, 849 A.2d 626. The defendant's claim is based on arguments advanced by the prosecutor during closing argument. Before we review the challenged remarks, we set forth our standard of review.
Prosecutorial misconduct claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute misconduct. Second, if misconduct occurred, the reviewing court must then determine if the defendant has demonstrated substantial prejudice. State v. Singh, 259 Conn. 693, 699, 793 A.2d 226 (2002). "In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process." (Internal quotation marks omitted.) Id., at 699-700, 793 A.2d 226.
(Citations omitted.) State v. Williams, supra, 204 Conn. at 540, 529 A.2d 653. Additionally, a reviewing court must consider whether the defendant objected, requested a curative instruction to the jury or moved for a mistrial on the basis of the misconduct. See State v. Rowe, 85 Conn.App. 563, 574-75, 858 A.2d 792, cert. granted on other grounds, 272 Conn. 906, 863 A.2d 699 (2004).
The defendant claims that the prosecutor committed misconduct in that she expressed her personal opinion concerning the victim's credibility. The remarks of which the defendant complains follow.
During her closing argument, the prosecutor discussed the charges against the defendant and then argued in relevant part as follows:
The prosecutor later argued as follows: The prosecutor also argued:
The defendant argues that the prosecutor expressed her personal opinion concerning the victim's credibility. The law circumscribes the prosecutor's leeway in commenting on the credibility of witnesses. (Emphasis in original; internal quotation marks omitted.) State v. Morgan, 70 Conn.App. 255, 287, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).
Having reviewed the challenged remarks, we conclude that they do not constitute prosecutorial misconduct. It was not...
To continue reading
Request your trial-
Wilcox v. Ferraina
... ... that they prevented [Wilcox] from entering upon the [p]roperty (for activities permitted under the [a]greement)." Finally, the defendants state in their brief that "by Mr. Wilcox's own testimony, there is nothing left to be removed from the site other than his equipment, which Mr. Ferraina ... ...
-
State v. Austin
...is troubling and ill-advised, it did not rise to the level of prosecutorial misconduct" (emphasis added) ); State v. Pedro S., 87 Conn. App. 183, 198, 865 A.2d 1177 (2005) ("The issue is whether the prosecutor's argument ... reflected merely the prosecutor's personal opinion of the defendan......
-
Chadha v. Charlotte Hungerford Hosp.
... ... On March 3, 1997, the hospital contacted the impaired physician program of 865 A.2d 1167 the Connecticut State Medical Society 5 ... regarding its concerns about the plaintiff's ability to practice medicine with reasonable skill and safety. The department of ... ...
-
State v. Gerald A.
...Physical evidence is not required to convict a defendant of sexual assault in the first degree. See, e.g., State v. Pedro S. , 87 Conn. App. 183, 201, 865 A.2d 1177 (concluding that there was sufficient evidence presented at trial to support defendant's conviction and noting that ''[t]he de......