May 11, 2016
from Superior Court, judicial district of Hartford, Suarez,
Katherine C. Essington, assigned counsel, for the appellant
Timothy J. Sugrue, assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, and
Chris A. Pelosi, senior assistant state's attorney, for
the appellee (state).
Alvord, Keller and Pellegrino, Js.
defendant, Elias V., appeals from the judgment of conviction,
rendered after a jury trial, of three counts 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); one count of sexual assault in the fourth degree in
violation of General Statutes § 53a-73a (a) (1) (A); two
counts of risk of injury to a child in violation of General
Statutes § 53-21 (a) (1); and three counts of risk of
injury to a child in violation of General Statutes §
53-21 (a) (2). On appeal, the defendant claims that (1) the
court improperly excused a juror before trial without first
notifying the defendant or his counsel; (2) the court
committed plain error concerning the constancy of accusation
testimony at trial; and (3) the prosecutor engaged in
impropriety in his cross-examination of the defendant and in
closing argument. We affirm the judgment of the trial court.
basis of the evidence presented at trial, the jury reasonably
could have found the following facts. In 2003, the defendant
began to sexually abuse his older daughter E.V., who was nine
years old at the time. Over the next eight years, the
defendant frequently subjected E.V. to various forms of
sexual abuse, including forced vaginal penetration, attempted
anal penetration, oral sex, masturbation, and other sexual
contact with her intimate parts.
addition to sexually abusing E.V., there was extensive
testimony about the defendant regularly exposing E.V. and his
younger daughter, K.V., to other forms of abuse that
jeopardized their health and welfare. For example, the
defendant was very possessive of E.V. and K.V., and he would
inspect K.V. in the shower to ensure that she was a virgin,
check E.V.'s body after school for hickeys, and dress
both of the girls in boys clothing. He would also force E.V.
and K.V. to consume alcohol. Finally, the defendant was prone
to violent outbursts, and he would regularly physically abuse
K.V. and occasionally physically abuse E.V. The
defendant's violent, controlling, and, at times, paranoid
behavior was often exacerbated by his use of crack cocaine.
events that led to the defendant's arrest were set in
motion by two reports, made by E.V.'s and K.V.'s
schools, to the Department of Children and Families
(department) in 2011. While E.V. was enrolled in high school,
the defendant would frequently require E.V. to stay home
under the pretense of having her take care of the house so
that he could sexually abuse her. In the fall of 2010, E.V.
confided in a teacher, with whom she had taken classes
throughout her four years of high school, that she often
missed school because her father insisted that she stay home
‘‘to take care of him, the house, and her little
brother, '' not because she was ill, as she had
previously indicated. The teacher then notified the
principal, school social worker and the school resource
officer about the potential truancy issue. Over the next few
months, the school resource officer spoke to E.V.'s
parents about her absenteeism in an attempt to resolve the
issue. When E.V.'s absenteeism persisted, the school
resource officer contacted the department on March 3, 2011.
same day, K.V. arrived home late from school because the
public bus she took home had broken down. When she arrived
home, the defendant extensively beat her, leaving bruises on
her face and body, because she was late and he did not
believe her excuse. On March 4, 2011, despite the visible
bruising, K.V. went to school. At the urging of friends, K.V.
went to the school counselor, who called the department. The
department sent an investigator, Gloria Rodriguez, to
interview K.V. about the potential physical abuse. Rodriguez
was also provided with the report E.V.'s school had made
about her absenteeism and potential educational neglect.
After interviewing K.V. and her mother, M.V., Rodriguez
suspected that E.V. was being sexually abused at home. When
Rodriguez interviewed E.V., she directly asked her whether
she was being sexually abused, and E.V. confirmed that she
was being sexually abused by her father.
February 3, 2014, a trial commenced on a ten count long form
information, charging the defendant in eight counts for his
sexual abuse of E.V. and in two counts for his sexual and
nonsexual abuse of E.V. On February 10, 2014, the jury
returned a guilty verdict on all counts. This appeal
defendant first claims on appeal that the court improperly
excused a regular juror before trial without first notifying
the defendant or his counsel. Because the defendant failed to
preserve this claim for appeal, he seeks Golding
review,  arguing that the court violated his state
and federal constitutional rights by excusing a juror without
first notifying the defendant or his counsel. Alternatively,
the defendant seeks reversal under the plain error doctrine,
arguing that the trial court failed to
‘‘articulate sufficient facts to support the
conclusion that the juror was no longer able to perform her
duties due to her diagnosis, '' as required by
General Statutes § 54-82h (c). The state responds that
both claims are unreviewable under Golding and do
not warrant reversal under the plain error doctrine because
the substitution of a regular juror for an alternate juror
does not implicate a defendant's constitutional rights
and the court complied with § 54-82h (c) when it
dismissed the juror for good cause. We agree with the state.
first address the defendant's claim that the court
violated his state and federal constitutional rights when it
excused the juror without first notifying the defendant or
his counsel. The defendant argues that he was entitled
to notice prior to the excusal of the juror on the basis of
the right to individual voir dire under article first, §
19, of the Connecticut constitution, as amended by article
four of the amendments; the right to counsel under the sixth
and fourteenth amendments to the United States constitution;
and the due process right to be present at all critical
stages of a prosecution under the fifth and fourteenth
amendments to the United States constitution.
defendant seeks Golding review. ‘‘Under
Golding, a defendant can prevail on a claim of
constitutional error not preserved at trial only if the
following conditions are met: (1) the record is adequate to
review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional violation .
. . exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state has
failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the defendant's
claim will fail. The appellate tribunal is free, therefore,
to respond to the defendant's claim by focusing on
whichever condition is most relevant in the particular
circumstances.'' (Internal quotation marks omitted.)
State v. Dixon, 318 Conn. 495, 511, 122 A.3d 542
conclude that the defendant's constitutional claims are
unreviewable because he has failed to allege claims of
constitutional magnitude as required by the second prong of
defendant argues that article first, § 19, of the
Connecticut constitution, requires a court to notify a
defendant when a selected juror indicates that she is no
longer able to participate in the proceeding so that defense
counsel has an opportunity, if necessary, to voir dire the
juror. We disagree.
first, § 19, provides in pertinent part that
‘‘[t]he right to question each juror individually
by counsel shall be inviolate.'' Article first,
§ 19, does not, however, vest parties with an absolute
right to question prospective and selected jurors
individually at any time. Instead, our Supreme Court has
interpreted article first, § 19, as constitutionalizing
only ‘‘certain rights . . . regarding the
selection of individual jurors, '' namely,
the right ‘‘to challenge jurors
peremptorily'' and the ‘‘right of the
parties to have counsel conduct individual examinations of
prospective jurors . . . .'' (Emphasis
added; internal quotation marks omitted.) Rozbicki v.
Huy-brechts, 218 Conn. 386, 391-93, 589 A.2d 363 (1991);
see also State v. Griffin, 251 Conn. 671, 699, 741
A.2d 913 (1999) (‘‘[t]he purpose of voir dire is
to facilitate [the] intelligent exercise of peremptory
challenges and to help uncover factors that would dictate
disqualification for cause'' [internal quotation
the defendant challenges the court's decision to excuse a
selected juror without first notifying him or
counsel. Therefore, article first, § 19, is inapposite,
and this claim does not merit Golding review.
defendant also invokes his right to counsel under the sixth
and fourteenth amendments to the United States constitution
and his due process right to be present under the fifth and
fourteenth amendments to the United States constitution to
support his claim that he was entitled to notice prior to the
juror's excusal. Because of the interrelated nature of
these claims, we address them together.
right to personal presence at all critical stages of the
trial and the right to counsel are fundamental rights of each
criminal defendant.'' (Internal quotation marks
omitted.) State v. Bonner, 290 Conn. 468, 491, 964
A.2d 73 (2009). Whether a particular matter constitutes a
critical stage depends not on the timing but on the nature of
cases have defined critical stages [for the right to counsel]
as proceedings between an individual and agents of the State
(whether ‘formal or informal, in court or out, ' .
. .) that amount to ‘trial-like confrontations, '
at which counsel would help the accused ‘in coping with
legal problems or . . . meeting his adversary'
''; (citation omitted) Rothgery v. Gillespie
County, 554 U.S. 191, 212 n.16, 128 S.Ct. 2578, 171
L.Ed.2d 366 (2008); as well as proceedings in which
‘‘counsel's absence might derogate from the
accused's right to a fair trial''; United
States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18
L.Ed.2d 1149 (1967). In the context of the right to be
present, ‘‘courts have evaluated the extent to
which a fair and just hearing would be thwarted by [the
defendant's] absence or whether his presence has a
relation, reasonably substantial, to the [fullness] of his
opportunity to defend against the charge'' when
determining whether a proceeding is a critical stage.
(Internal quotation marks omitted.) State v. Gilberto
L., 292 Conn. 226, 237, 972 A.2d 205 (2009).
case, the court's decision to excuse the juror because of
a medical diagnosis did not amount to a
‘‘trial-like'' confrontation between the
state and the defendant. Nor did it implicate the
defendant's right to a fair trial; ‘‘the
mechanisms for providing for and dismissing alternate jurors,
and the circumstances under which they may be substituted for
regular jurors, do not implicate [state or federal]
constitutional rights.'' State v. Williams,
231 Conn. 235, 244, 645 A.2d 999 (1994), overruled in part on
other grounds by State v. Murray, 254 Conn. 472,
487, 757 A.2d 578 (2000) (en banc); see also State v.
LaBrec, 270 Conn. 548, 559, 854 A.2d 1 (2004). Finally,
the discretionary decision to excuse the juror in this
circumstance was a straightforward judicial administrative
action not implicating the defendant's ability to defend
himself later at trial.
conclude that the defendant's claims are unre-viewable
because the excusal of the juror in this case does not
implicate the defendant's constitutional rights as
required by the second prong of Golding.
defendant also seeks reversal under the plain error doctrine,
arguing that the court violated § 54-82h (c) by making
insufficient factual findings of good cause before excusing
the juror. The state responds that consideration of
the defendant's claim under the plain error doctrine is
inappropriate in this case because the decision to excuse a
juror is committed to the sound discretion of the court, and
the court in this case was within its discretion to grant the
juror's request to be excused due to a medical condition.
We agree with the state.
plain error doctrine permits the court to
‘‘reverse or modify the decision of the trial
court if it determines . . . that the decision is . . .
erroneous in law. . . .'' Practice Book § 60-5.
It ‘‘is not . . . a rule of review-ability. It is
a rule of reversibility. That is, it is a doctrine that this
court invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised at all
in the trial court, nonetheless requires reversal of the
trial court's judgment, for reasons of policy.''
State v. Cobb, 251 Conn. 285, 343 n.34, 743 A.2d 1
(1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148
L.Ed.2d 64 (2000). ‘‘A party cannot prevail under
plain error unless it has demonstrated that the failure to
grant relief will result in manifest injustice.''
(Internal quotation marks omitted.) State v. LaBrec,
supra, 270 Conn. 559.
present case, we perceive no impropriety that would result in
manifest injustice. ‘‘Under settled principles,
[a] court may excuse a regular juror if that juror, for any
reason, becomes unable to perform his or her duty. General
Statutes § 54-82h (c). The power to excuse a juror under
this section is expressly premised on a finding of cause. . .
. Whether in the circumstances just cause exists to excuse a
juror is a matter within the discretion of the . . .
court.'' (Internal quotation marks omitted.)
State v. Apodaca, 303 Conn. 378, 386, 33 A.3d 224
have recognized that unavailability due to illness may
constitute cause to excuse a juror, '' even if the
medical condition will render the juror available for a short
or indeterminable period. State v. Gonzalez, 315
Conn. 564, 583, 585, 109 A.3d 453 (2015); see, e.g.,
State v. Apodaca, supra, 303 Conn. 386-87 (trial
court's decision to excuse juror that was ill overnight
with flu and unable to confirm when she would return was not
abuse of discretion). Here, the trial court articulated a
proper basis for its decision to excuse the juror: the juror
was diagnosed with a medical condition that prevented the
juror from taking part in the trial.
defendant nevertheless insists that the trial court was
obligated to ‘‘state the diagnosis or medical
condition of the juror on the record, describe her current
physical condition, or detail what medical treatment or
intervention was necessary.'' Neither the plain
language of § 54-82h (c) nor our case law interpreting
it mandate an invasion of the juror's
privacy interests in this manner.
our careful review of the record, we conclude that the
defendant has not met this stringent standard for reversal
under the plain error doctrine concerning his unpreserved
address the defendant's claims that the court (1) sua
sponte should have stricken testimony that exceeded the scope
of the constancy of accusation doctrine, and (2) erroneously
instructed the jury concerning the proper usage of constancy
of accusation testimony. Because the defendant failed to
preserve these issues at trial, he now claims that they
warrant reversal under the plain error doctrine. We conclude
that both claims are unreviewable.
crime cases, a person to whom a sexual assault victim has
reported the assault may testify about the report, but this
testimony is subject to certain restrictions. State v.
Troupe, 237 Conn. 284, 290-91 n.7, 677 A.2d 917 (1996)
(en banc); Conn. Code Evid. § 6-11 (c). First, the
witness may testify only ‘‘with respect to the
fact and timing of the victim's complaint'' and
the details regarding ‘‘the assault must be
strictly limited to those necessary to associate the
victim's complaint with the pending charge, including,
for example, the time and place of the attack or the identity
of the alleged perpetrator.'' State v.
Troupe, supra, 304. Second, ‘‘such evidence
is admissible only to corroborate the victim's testimony
and not for substantive purposes.'' Id. With
this legal framework in mind, we address each of the
defendant's claims in turn.
defendant first claims that the court sua sponte should have
stricken the testimony by M.V. and Rodriguez about the types
of sexual acts the defendant engaged in with E.V. because it
went beyond the fact and timing of E.V.'s
complaint. The state responds that this claim
cannot be reviewed because defense counsel never objected to
this testimony, and the court was under no obligation to
strike the evidence sua sponte. We agree with the state.
well settled that ‘‘when opposing counsel does
not object to evidence, it is inappropriate for the trial
court to assume the role of advocate and decide that the
evidence should be stricken. . . . The court cannot determine
if counsel has elected not to object to the evidence for
strategy reasons. . . . Experienced litigators utilize the
trial technique of not objecting to inadmissible evidence to
avoid highlighting it in the minds of the jury. Such court
involvement might interfere with defense counsel's
tactical decision to avoid highlighting the testimony. When
subsequent events reveal that it was an imprudent choice,
however, the defendant is not entitled to turn the clock back
and have [the appellate court] reverse the judgment because
the trial court did not, sua sponte, strike the testimony and
give the jury a cautionary instruction.'' (Citations
omitted.) State v. Wragg, 61 Conn.App. 394, 399, 764
A.2d 216 (2001) (no plain error for the court to refrain from
striking, sua sponte, the constancy of accusation testimony).
therefore conclude that it was not plain error for the court
to refrain from sua sponte striking the constancy of
accusation testimony of M.V. and Rodriguez.
defendant next claims that the court's instruction on the
constancy of accusation testimony was defective in two
respects: (1) the court erroneously omitted M.V.'s name
from the instruction and (2) the instruction was misleading
concerning the permissible use of the constancy of accusation
testimony. We disagree.
February 6, 2014, the court conducted a charging conference
in chambers at which it provided a copy of the draft jury
instructions to both counsel and received their comments. On
February 7, 2014, the court memorialized this conference on
the record, discussing the changes that counsel requested. In
pertinent part, defense counsel had requested a delay
reporting instruction under the constancy of accusation
instruction, and the court granted that
request. Notably, the constancy of accusation
charge referenced only Rodriguez' testimony about
E.V.'s report of sexual abuse to her, not M.V.'s
testimony about E.V.'s report of sexual abuse to her. The
defendant did not request that M.V.'s name be included in
the charge nor did he object to the omission.
defendant concedes, because defense counsel participated in a
charging conference, did not submit a written request to
charge the jury concerning M.V.'s testimony, and
expressed satisfaction with the instruction, which referenced
only the testimony of Rodriguez, he waived any challenge to
the jury instruction at trial under State v.
Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011); see
also State v. Coleman, 304 Conn. 161, 174-75, 37
A.3d 713 (2012) (recognizing that a defendant can expressly
and implicitly waive a claim of instructional error).
Consequently, the defendant asserts that both instructional
error claims warrant consideration under the plain error
initial matter, ‘‘[t]his court has adhered to the
view that waiver thwarts a finding that plain error
exists.'' State v. Bialowas, 160 Conn.App.
417, 430, 125 A.3d 642 (2015) (collecting cases). However,
even if we were to assume, without deciding, that the
defendant's waiver would not preclude him from seeking
such relief; see State v. Darryl W., 303 Conn. 353,
371-72 n.17, 33 A.3d 239 (2012) (‘‘[w]e recognize
that there appears to be some tension in our appellate case
law as to whether reversal on the basis of plain error could
be available in cases where the alleged error is causally
connected to the defendant's own behavior''); we
conclude that the defendant cannot demonstrate that the
claimed impropriety was so clear, obvious and indisputable as
to warrant the extraordinary remedy of reversal.
defendant first argues that the court erred by not including
M.V.'s name in the jury instruction. To prevail, the
defendant would have to demonstrate that a failure in an
evidentiary instruction to refer to all of the evidence that
the instruction could possibly encompass is plain error.
There is, however, no such general rule. Nor is there such a
rule in the constancy of accusation context in particular.
See State v. Troupe, supra, 237 Conn. 305 (stating
only that ‘‘the defendant is entitled to an
instruction that any delay by the victim in reporting the
incident is a matter for the jury to consider in evaluating
the weight of the victim's testimony''); Conn.
Code Evid. § 6-11 (c) (not requiring limiting
instruction where there has been no request).
is well established in Connecticut . . . that the trial court
generally is not obligated, sua sponte, to give a limiting
instruction.'' State v. Cator, 256 Conn.
785, 801, 781 A.2d 285 (2001); see also State v.
Hill, 307 Conn. 689, 705 n.12, 59 A.3d 196 (2013).
‘‘The failure by the trial court to give, sua
sponte, an instruction that the defendant did not request,
that is not of constitutional dimension and that is not
mandated by statute or rule of practice is not such an
obvious error that it will affect the fairness and integrity
of and public confidence in the judicial
proceedings.'' (Internal quotation marks omitted.)
State v. Eason, 47 Conn.App. 117, 120, 703 A.2d 130
(1997), cert. denied, 243 Conn. 962, 705 A.2d 552 (1998). We
conclude therefore that the defendant's first claim of
instructional error fails to meet the stringent requirements
of plain error review.
the defendant argues that the jury instruction undoubtedly
left the jury with the impression that Rodriguez'
testimony about E.V.'s out-of-court report of sexual
abuse could be used as substantive evidence of that abuse or
to corroborate all of E.V.'s in-court testimony
concerning all of the offenses, not just to corroborate the
fact that E.V. reported the defendant's sexual abuse to
Rodriguez. We disagree.
pertinent test is whether the charge, read in its entirety,
fairly presents the case to the jury in such a way that
injustice is not done to either party under the established
rules of law. Thus, [t]he whole charge must be considered
from the standpoint of its effect on the [jurors] in guiding
them to the proper verdict . . . and not critically dissected
in a microscopic search for possible error.''
(Internal quotation marks omitted.) State v.
Apodaca, supra, 303 Conn. 390-91.
case, the court's instruction, when read in its entirety,
adequately conveyed to the jury the limited permissible usage
of the constancy of accusation testimony. The court began its
charge by explaining the difference between E.V.'s
in-court testimony about her abuse, which ‘‘[y]ou
may use . . . as evidence and proof of the facts asserted,
'' and Rodriguez' testimony about E.V.'s
out-of-court report of abuse, the usage of which
‘‘was limited in scope to the fact and timing
of the complainant's complaint, the time and
place of the alleged sexual assault, and the
identity of the alleged perpetrator.''
court went on to instruct the jury that the constancy of
accusation testimony ‘‘is to be considered by you
only in determining the weight and credibility'' of
E.V.'s testimony, not ‘‘to prove the truth of
the matter asserted in the out-of-court statement.''
Finally, toward the close of its charge, the court again
instructed the jury concerning the limited permissible usage
of this evidence. The court explained that if the jury found
that E.V.'s in-court and out-of-court statements about
her abuse were consistent, the jury ‘‘may find
her testimony in the court to be corroborated or supported
with respect to the fact and timing of her complaint, the
time and place of the alleged sexual assault, and the
identity of the alleged perpetrator.'' (Emphasis
the court's description of the permissible uses of the
constancy of accusation testimony at the beginning and end of
its charge was virtually identical to the Supreme Court's
description of the permissible uses of constancy of
accusation testimony in Troupe. See State v.
Troupe, supra, 237 Conn. 304 (stating that a witness
‘‘may testify only with respect to the fact
and timing of the victim's complaint'' and
that the details of the assault ‘‘must be
strictly limited to those necessary to associate the
victim's complaint with the pending charge, including,
for example, the time and place of the attack or
the identity of the alleged perpetrator''
[emphasis added]); see also Conn. Code Evid. § 6-11 (c)
(‘‘A person to whom a sexual assault victim has
reported the alleged assault may testify that the allegation
was made and when it was made . . . . Any testimony by the
witness about details of the assault shall be limited to
those details necessary to associate the victim's
allegations with the pending charge.'').
the court's instruction as a whole is virtually identical
to the instruction provided on the Judicial Branch's
website for constancy of accusation testimony. See
Connecticut Criminal Jury Instructions (4th Ed. 2008) §
7.2-1 (Rev. to May 20, 2011), available at
visited September 9, 2016). While this fact is not
determinative of the matter before this court, as the
Judicial Branch website instructions are nonbinding, it is
instructive; particularly, when the instruction comports with
the explanation of the doctrine set forth in our case law, as
the instruction in this case did. See State v.
Coleman, supra, 304 Conn. 176 (finding no plain error
where ‘‘the instruction at issue is provided on
the judicial branch's website'' and accords with
relevant case law).
reviewing the constancy of accusation instruction given by
the court in its entirety, therefore, a showing of plain
error has not been made.
we turn to the defendant's claims of prosecutorial
impropriety. Specifically, the defendant claims that he was
denied a fair trial because the prosecutor (1) injected
extraneous matters into the trial and (2) improperly appealed
to the passions and emotions of the jury. We conclude that
there was no impropriety.
review claims of prosecutorial impropriety under a two step
analytical process. ââThe two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety exists,
we then examine whether it deprived the defendant of his due
process right to a fair trial. . . . In other words, an
impropriety is an impropriety, regardless of its ultimate
effect on the fairness of the trial. Whether that impropriety
was harmful and thus caused or contributed to a due process
violation involves a separate and distinct inquiry.''
(Citations omitted.) State v. Fauci, 282 Conn. 23,
32, 917 A.2d 978 (2007). ‘‘The defendant bears
the burden of satisfying both of these analytical
steps.'' State v. O'Brien-Veader, 318
Conn. 514, 524, 122 A.3d 555 (2015).
defendant first claims that the prosecutor injected
extraneous matters into the trial by suggesting during his
cross-examination of the defendant that the defendant was
lying to avoid being labeled in prison as a sex offender. The
state responds that the defendant's claim is evidentiary
in nature and therefore is not preserved. We agree with the
trial, the defendant elected to testify on his own behalf.
During his cross-examination of the defendant, the
prosecutor, without objection, suggested that the defendant
had a motive to lie to avoid being labeled in prison as a sex
offender that sexually assaulted his daughter.
our Supreme Court has held that unpreserved claims of
prosecutorial impropriety are to be reviewed under the
[factors enunciated in State v. Williams, 204 Conn.
523, 540, 529 A.2d 653 (1987)], that rule does not pertain to
mere evidentiary claims masquerading as constitutional
violations.'' (Internal quotation marks omitted.)
State v. Alex B., 150 Conn.App. 584, 589, 90 A.3d
1078, cert. denied, 312 Conn. 924, 94 A.3d 1202 (2014); see
also State v. Rowe, 279 Conn. 139, 151-52, 900 A.2d
1276 (2006) (declining to review a claim of prosecutorial
impropriety that was evidentiary in nature). The defendant
has failed to bring to our attention any law suggesting that
it is constitutionally improper for a prosecutor to
cross-examine a criminal defendant about his motive to lie,
just as he would any other witness.
well settled that ‘‘[a]n accused in taking the
stand subjects himself to the same rules and is called on to
submit to the same tests which could by law be applied to
other witnesses.'' State v. Palozie, 165
Conn. 288, 298, 334 A.2d 468 (1973) (holding that the state
was permitted to question the defendant concerning his use of
a ‘‘strap'' on his children during a time
period not within the information because it was relevant on
the issue of the credibility of the defendant). This includes
an examination of the defendant's motive to lie.
State v. Leconte, 320 Conn. 500, 510, 131 A.3d 1132
(2016) (‘‘[a]s an appropriate and potentially
vital function of cross-examination, exposure of a
witness' motive, interest, bias or prejudice may not be
unduly restricted'' [internal quotation marks
omitted]); State v. Warholic, 278 Conn. 354, 381,
897 A.2d 569 (2006) (‘‘[q]uestions about a
witness' motive are proper because they seek to elicit
facts from which a jury can make credibility
determinations''); State v. Holliday, 85
Conn.App. 242, 261, 856 A.2d 1041 (‘‘[o]ur
jurisprudence instructs that a prosecutor may comment on a
witness' motivation to be truthful or to lie''),
cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004).
defendant has not cited any authority for the proposition
that a prosecutor cannot question a defendant about his
motive to lie because it relates to the collateral
consequences of conviction in the case. Here, the defendant
was charged in eight counts with offenses relating to his
sexual abuse of E.V. If convicted of even one of these
multiple counts, the defendant would not only bea
‘‘sex offender, '' but asex offender that
sexually abused his daughter. Exploring the defendant's
motive to lie to avoid the well-known stigmatizing
effects of this classification did not inject an extraneous
matter into the trial.
garden variety claims [of an evidentiary nature] in the
majestic garb of constitutional claims does not make such
claims constitutional in nature. . . . Putting a
constitutional tag on a nonconstitutional claim will no more
change its essential character than calling a bull a cow will
change its gender.'' (Internal quotation marks
omitted.) State v. Ruffin, 144 Conn.App. 387, 399,
71 A.3d 695 (2013), aff'd, 316 Conn. 20, 110 A.3d 1225
(2015). Here, the challenge to the cross-examination of the
defendant by the prosecutor is evidentiary in nature and is
unpreserved. Accordingly, it is not reviewable under
defendant next alleges three acts of impropriety concerning
the prosecutor's closing argument. First, the defendant
claims that the prosecutor improperly suggested that
‘‘defendants in child sexual assault cases have
an increased motive to lie for fear of being
‘labeled' as a sex offender in jail.''
Second, the defendant argues that the prosecutor's
remarks improperly appealed to the emotions and prejudices of
the jurors by repeatedly calling the defendant a
‘‘sex offender.'' Finally, the defendant
argues that the prosecutor improperly appealed to the
emotions and prejudices of the jurors by encouraging them to
find the defendant guilty because he was a ‘‘bad
person'' rather than on the basis of the evidence. We
conclude that the prosecutor's remarks were not improper.
following additional facts are necessary to our resolution of
these claims. During his closing argument, the prosecutor
explained to the jurors that the case required them to assess
the credibility of all of the witnesses, and he reviewed the
evidence that corroborated various witnesses' testimony.
Toward the end of his closing argument, the prosecutor made
the following remarks:
basically, for the sex assault, it comes down to E.V. and
this defendant; so, you're going to have to compare their
testimonies. Who is more credible? Okay?
Obedient. Never lied. Honor student. We saw the way she
testified. God-fearing, as he said, as he put a knife-as she
put a knife to her father where she almost had enough where
she put a knife to his-his throat and said God won't
forgive me if I did it. You have E.V. and that person.
to person, who's always promised to change for years and
years and years and never did. Similar to how he told E.V.
after every time he penetrated her, I would stop. So, you
have that person. You also have the person who would take the
moneys-family's [social security disability] money for