STATE v. A.M., SC 19497

Judicial District of Danbury

 Criminal; Whether Appellate Court Properly Determined that Prosecutor's Comments Amounted to Prosecutorial Impropriety that Deprived Defendant of a Fair Trial. The defendant was tried on charges of sexual assault and risk of injury.  During rebuttal argument, the prosecutor twice mentioned the defendant's failure to testify.  The prosecutor stated: "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 that he said. . . ."  She also remarked: "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. . . ."  The defendant was convicted, and he appealed, claiming that the comments constituted prosecutorial impropriety and denied him a fair trial.  The Appellate Court (156 Conn. App. 138) first considered whether the comments were improper.  It determined that the statements constituted a clear violation of General Statutes § 54-84, which provides in part that “[t]he neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official. . . .”  The court explained that, although the prosecutor acknowledged the defendant's constitutional right not to testify, the comments, in the context of the entire trial, violated the defendant's due process rights because they were made in relation to his credibility and thus impliedly encouraged the jury to infer his guilt because of his choice not to testify.  The court next examined the factors set forth in State v. Williams, 204 Conn. 523 (1987), to determine whether the comments deprived the defendant of his due process right to a fair trial, requiring a reversal of his conviction.  The court determined that the impropriety was severe in that it constituted a direct infringement on the defendant's right not to testify, that it was central to the critical issue of his credibility, and that the state's case was not particularly strong.  The Appellate Court further determined that, although the comments were not pervasive, the fact that they were made during rebuttal foreclosed any refutation by the defendant.  The court also concluded that the remarks were not invited and that the trial court's general instruction directing the jury not to draw an adverse inference from the defendant's failure to testify did not cure the improper comments.  The court therefore held that the comments deprived the defendant of his right to a fair trial.  The Supreme Court will now decide whether the Appellate Court properly determined that the prosecutor's comments amounted to prosecutorial improprieties and that such improprieties deprived the defendant of his due process right to a fair trial.  The state argues that, to the extent that the Appellate Court determined that the mere reference by a prosecuting official to the defendant's failure to testify constitutes a violation of § 54-84, the court's interpretation of the statute was erroneous.  Moreover, the state submits that, when read in context, the prosecutor’s comments merely directed the jury to evaluate the defendant's credibility by assessing his statements to the police, despite his failure to testify.  Finally, the state claims that, even assuming that the prosecutor’s comments were improper, they did not violate the defendant’s due process right to a fair trial and were harmless beyond a reasonable doubt.