State v. Warholic
Citation | 278 Conn. 354,897 A.2d 569 |
Decision Date | 30 May 2006 |
Docket Number | No. 17289.,17289. |
Court | Supreme Court of Connecticut |
Parties | STATE of Connecticut v. Charles WARHOLIC. |
Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, senior assistant state's attorney, for the appellant (state).
Richard Emanuel, New Haven, for the appellee (defendant).
BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.
Upon our grant of certification, the state appeals from the Appellate Court's judgment reversing the conviction of the defendant, Charles Warholic, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(2), and one count of risk of injury to a child in violation of General Statutes § 53-21. State v. Warholic, 84 Conn.App. 767, 854 A.2d 1145 (2004). The state claims that the Appellate Court improperly reversed the defendant's convictions due to prosecutorial misconduct. We agree, and, accordingly, we reverse the judgment of the Appellate Court.
The Appellate Court opinion sets forth the following facts, which reasonably could have been found by the jury. "E1 was born in 1986. In 1990, when E was four years old, his parents were divorced and his father moved out of their house. After the divorce, E lived with his mother, his two older sisters, L and B, and the defendant, who was his mother's boyfriend. In February, 1992, when E was five years old, his family and the defendant moved to a rented house in Watertown.
State v. Warholic, supra, 84 Conn.App. at 769-71, 854 A.2d 1145. Additional facts will be set forth as necessary.
The jury found the defendant guilty on both counts. The trial court rendered judgment in accordance with the jury's verdict. The defendant subsequently 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. The Appellate Court determined that the prosecutor improperly: (1) expressed his personal opinion during closing and rebuttal argument as to the credibility of E, the defendant, and E's mother, who was called as a witness for the defendant; id., at 774-77, 854 A.2d 1145; (2) expressed his personal opinion of the defendant's guilt; id., at 776, 854 A.2d 1145; (3) appealed to the emotions of the jury during closing argument; id., at 777-78, 854 A.2d 1145; (4) during rebuttal argument made gratuitous remarks to elicit sympathy for E and appealed to the male jurors to identify with E; id., at 779-80, 854 A.2d 1145; (5) during cross-examination asked the defendant to comment on the veracity of E's testimony; id., at 780-81, 854 A.2d 1145; and (6) during cross-examination attacked the character of the defendant and E's mother. Id., at 781-83, 854 A.2d 1145. The Appellate Court concluded that these improprieties so infected the trial that they violated the defendant's due process right to a fair trial.2 Id., at 783-86, 854 A.2d 1145. Accordingly, the Appellate Court reversed the judgment of the trial court and ordered a new trial. Id., at 786, 854 A.2d 1145. Thereafter, we granted the state's petition for certification to appeal, limited to the following question: "Did the Appellate Court properly reverse the judgment of conviction because of prosecutorial misconduct?" State v. Warholic, 271 Conn. 935, 861 A.2d 512 (2004). This appeal followed.
The state argues that the Appellate Court incorrectly determined that many of the prosecutor's comments during final arguments and questions during cross-examination were improper. Further, the state contends that the Appellate Court improperly determined that the misconduct deprived the defendant of a fair trial because it overstated the frequency and severity of the misconduct, and failed to give adequate weight to the trial court's curative instructions, the defendant's failure to object to most of the misconduct, and the fact that the jury asked to rehear all of E's testimony.
At the outset, we note that, although the defendant preserved a number of his claims of misconduct by way of objections or motions for mistrial, he did not preserve all of the claims of misconduct that he has raised on appeal. Nonetheless, we have recently stated that a defendant who fails to preserve claims of prosecutorial misconduct need not "seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-prong Golding test." State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). The reason for this is that the defendant in a claim of prosecutorial misconduct must establish that the "prosecutorial misconduct was so serious as to amount to a denial of due process . . . ." (Internal quotation marks omitted.) Id., at 573, 849 A.2d 626. In evaluating whether the misconduct rose to this level, we consider the factors enumerated by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). State v. Stevenson, supra, at 572-73, 849 A.2d 626. These factors include the extent to which the misconduct was invited by defense conduct or argument, the severity of the misconduct, the frequency of the misconduct, the centrality of the misconduct to the critical issues in the case, the strength of the curative measures adopted, and the strength of the state's case. Id., at 573, 849 A.2d 626. The consideration of the fairness of the entire trial through the Williams factors duplicates, and, thus makes superfluous, a separate application of the Golding test. Id., at 573-74, 849 A.2d 626.
(Internal quotation marks omitted.) State v. Ancona, 270 Conn. 568, 593, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S.Ct. 921, 160 L.Ed.2d 780 (2005).
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