State v. Spencer

• Decision Date: 30 August 2005
• Docket Number: No. 17199.,17199.
• Citation: 275 Conn. 171,881 A.2d 209
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Anthony SPENCER.

881 A.2d 209

275 Conn. 171

STATE of Connecticut v. Anthony SPENCER.

No. 17199.

Supreme Court of Connecticut.

Argued May 19, 2005.

Decided August 30, 2005.

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David J. Strollo, senior assistant state's attorney, for the appellant (state).

Jon L. Schoenhorn, Hartford, for the appellee (defendant).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

Upon our grant of certification, the state appeals from the Appellate Court's judgment reversing the conviction of the defendant, Anthony Spencer, of one count each of the crimes of kidnapping in the first degree, sexual assault in the first degree, sexual assault in the second degree, and risk of injury to a child. State v. Spencer, 81 Conn.App. 320, 840 A.2d 7 (2004). The state claims that the Appellate Court improperly reversed the defendant's conviction for sexual assault in the second degree and risk of injury to a child due to prosecutorial misconduct. We agree with the state, and, accordingly, we reverse in part the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following facts, which reasonably could have been found by the jury. "In June, 1994, the alleged victim, a fourteen year old girl, left school in New Haven to meet her boyfriend. The alleged victim boarded a bus from her school to downtown New Haven. Once the bus took her to downtown New Haven, she waited at another bus stop. While waiting at that bus stop, she witnessed a classmate conversing with the defendant. The defendant was twenty-four years old at the time. The defendant asked the alleged victim to get into his car. When she refused, the defendant grabbed her and forced her into the car. The defendant unsuccessfully attempted to buckle her seat belt. He closed the car door and ran to the driver's side. The alleged victim attempted to open the car door, but could not figure out how to operate the door handle.

"The defendant drove off with the alleged victim. He stopped at a package store to obtain beer. He left her in the car, but she remained in his sight the entire time. The defendant then drove her to a New Haven motel. Once again, he left her in the car for about five minutes as he registered for a room. The defendant returned and escorted her to the motel room. She did not attempt to escape, but unsuccessfully attempted to get the attention of other people in the parking lot. In response, the defendant grabbed her neck from behind. After they entered the motel room, the defendant locked the door. Once inside, the defendant threatened her with a partially concealed knife. The defendant then allegedly sexually assaulted her. After the alleged assault ended, she made up a story that she had a child and that she needed to pick the child up from her baby-sitter at a residence on Congress Avenue in New Haven. The defendant and the alleged victim departed from the motel in his car.

"When the defendant and the alleged victim arrived at the specified location on Congress Avenue, which was actually the residence of her boyfriend, she went inside. The defendant waited outside so she supposedly could retrieve her child before the defendant would drive her home. Once inside, she broke down and informed her boyfriend that she had been assaulted. The boyfriend proceeded outside with a friend to confront the defendant, but the defendant sped off. The alleged victim reported the alleged sexual assault to the police." Id., at 322-24, 840 A.2d 7. Additional facts will be set forth as necessary.

The defendant subsequently was arrested and charged with one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(A), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1), one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1),¹ one count of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21,² and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. A jury found the defendant guilty of kidnapping in the first degree, sexual assault in the first and second degree, and risk of injury to a child. The trial court rendered judgment in accordance with the jury's verdict.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming that he was deprived of his due process right to a fair trial as a result of prosecutorial misconduct in the state's closing argument.³ Although the defendant did not object to the misconduct at trial; id., at 324, 840 A.2d 7; the Appellate Court concluded that the misconduct deprived the defendant of his right to a fair trial. Id., at 322, 840 A.2d 7. Specifically, the Appellate Court determined that during the state's closing argument, the prosecutor improperly: (1) expressed his personal opinion as to the defendant's guilt and the credibility of the witnesses; id., at 328-29, 840 A.2d 7; (2) appealed to the jury to identify with the state's case; id., at 329, 840 A.2d 7; (3) appealed to the emotions of the jurors by relating a story from his youth in order to explain the behavior of the victim before and after the sexual assault; id., at 330-31, 840 A.2d 7; and (4) referred to facts outside the record by relating this story from his youth. Id., at 331-32, 840 A.2d 7. Accordingly, the Appellate Court reversed the judgment of the trial court and ordered a new trial on all counts of the information on which the defendant had been convicted. Id., at 339, 840 A.2d 7. Thereafter, we granted the state's petition for certification to appeal, limited to the following question: "Did the Appellate Court properly reverse the defendant's conviction for sexual assault in the second degree in violation of General Statutes § 53a-71 (a)(1) and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21, on the grounds of prosecutorial misconduct?" State v. Spencer, 269 Conn. 907, 852 A.2d 738 (2004). This appeal followed.

I PROSECUTORIAL MISCONDUCT

The state does not contest that prosecutorial misconduct occurred during the defendant's trial. The state further concedes that the misconduct deprived the defendant of his due process right to a fair trial as to his conviction for kidnapping in the first degree and sexual assault in the first degree. The state claims, however, that the Appellate Court improperly determined that the defendant was deprived of a fair trial as to his conviction for sexual assault in the second degree and risk of injury to a child.⁴ Specifically, the state contends that the misconduct did not prejudice the defendant with regard to the conviction of those charges because there was no reasonable likelihood that the jury's verdict would have been different absent the misconduct. In response, the defendant argues that the Appellate Court properly determined that the misconduct was so egregious and pervasive that he was deprived of his due process right⁵ to a fair trial on all counts, not just the most serious counts. Alternatively, the defendant contends that his right to a fair trial was violated with respect to his conviction for risk of injury to a child because the state's case was not strong and, therefore, he was prejudiced by the misconduct. We agree with the state.

We begin by setting forth the applicable standard of review. Typically, if a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁶ See State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002). In cases of unpreserved claims of prosecutorial misconduct, however, "it is unnecessary for the defendant to seek to prevail under the specific requirements of . . . Golding . . . and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test. The reason for this is that the touchstone for appellate review of claims of prosecutorial misconduct is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). . . .

"Regardless of whether the defendant has objected to an incident of misconduct, a reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the misconduct is viewed in light of the entire trial. The application of the Williams factors, therefore, is identical to the third and fourth prongs of Golding, namely, whether the constitutional violation exists, and whether it was harmful. . . . Requiring the application of both Williams and Golding, therefore, would lead . . . to confusion and duplication of effort. Furthermore, the application of the Golding test to unchallenged incidents of misconduct tends to encourage analysis of each incident in isolation from one another. Because the inquiry must involve the entire trial, all incidents of misconduct must be viewed in relation to one another and within the context of the entire trial. The object of inquiry before a reviewing court in [due process] claims involving prosecutorial misconduct, therefore, is . . . only the fairness of the entire trial, and not the specific incidents of misconduct themselves. Application of the Williams factors provides for such an analysis, and the specific Golding test, therefore, is superfluous. In light of these observations, we conclude that, following a determination that prosecutorial misconduct has occurred, regardless of whether it was objected to, an appellate court must apply the Williams factors to the...