October 19, 2018
from the Superior Court in the judicial district of New
London, Jongbloed, J.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
J. Steele, assigned counsel, for the appellant (defendant).
J. Tytla, supervisory assistant states attorney, with whom,
on the brief, was Michael L. Regan, states attorney, for the
C. J., and Palmer, McDonald, DAuria, Mullins, Kahn and
Conn. 534] The defendant, Kenneth M. Weatherspoon, was
convicted after a jury trial of sexual assault in a
cohabiting relationship in violation of General Statutes §
53a-70b and assault in the third degree in violation of
General Statutes § 53a-61 (a) (1). The defendant testified at
trial, and his claims on appeal relate to allegedly improper
attacks on his credibility made by the prosecutor during
cross-examination and closing argument. First, the defendant
contends that the prosecutor made an impermissible
"generic tailoring" argument by commenting in
closing argument that the jury should discredit the
defendants trial testimony because, among other reasons, it
came at the end of the trial,
"with the benefit of hearing all the testimony that came
before." [332 Conn. 535] The defendant claims
that this comment violated his confrontation rights under
article first, § 8, of the Connecticut
constitution. He also asks this court to hold that
the prosecutors tailoring comment (1) constitutes
prosecutorial impropriety depriving the defendant of his due
process right to a fair trial, (2) requires reversal under
the plain error doctrine, and/or (3) should prompt us to
exercise our supervisory authority to reverse his judgment of
conviction and prohibit generic tailoring arguments. Second,
the defendant claims that the prosecutor engaged in
impermissible conduct in violation of his due process right
to a fair trial pursuant to State v. Singh, 259
Conn. 693, 793 A.2d 226 (2002), by conveying to the jury that
it would need to find that the police officer had lied in
order to find the defendant not guilty.
careful review of the record, we affirm the judgment of
conviction. We conclude that the prosecutors tailoring
comment constituted a specific, rather than a generic,
tailoring argument because it was substantiated by express
reference to evidence from which the jury reasonably could
infer that the defendant had tailored his testimony. We
therefore decline the defendants request to decide whether
generic tailoring arguments violate the state constitution.
With respect to the alleged improprieties under
Singh, for the purposes of our analysis, we assume,
without deciding, that Singh was violated, but we
nonetheless conclude that the defendant was not deprived of
his due process right to a fair trial. We therefore affirm
the judgment of conviction.
Conn. 536] I
begin by setting forth the pertinent facts and relevant
procedural history. The complainant, A, and the defendant
met while working for the United States Navy. They dated for
a lengthy period and eventually moved into an apartment
together. At trial, A testified that, on November 5, 2015,
the two began to engage in consensual oral sex in the living
room of their apartment. During the encounter, however, the
defendant became forceful and aggressive, and he ignored As
request that he stop. The defendant began to bite As neck
and buttocks despite her plea that he was hurting her. He
then told her to go into the bedroom, where he continued to
physically abuse her despite her efforts to leave the room.
The defendant pushed A
down on the bed, pulled her legs out from under her when she
got up so that she fell, and then held her against the wall
while choking her. After he let her go, she fell to the
ground, and he began to choke her again. At the end of the
altercation, the defendant told A to "[g]et the fuck out
of my sight ...." A then barricaded herself in the
bathroom, where she curled up in the fetal position and
cried. She later showered and prepared to go to work, but, as
she did so, the defendant renewed his aggressive behavior. He
began to intermittently use the camera on his cell phone to
film A while interrogating her about their relationship.
Before A was able to leave the apartment, the defendant
grabbed her by the belt and led her into the living room,
where he took off her belt and pants. She told him to stop,
but he nonetheless proceeded to penetrate her with his penis,
both anally and vaginally.
her arrival at work, As coworker and supervisor observed
marks on her neck. A disclosed to her [332 Conn. 537]
coworker that her boyfriend had forced her to perform oral
sex. After the same coworker overheard A talking on the phone
about the assault allegations, he reported the information to
his superiors pursuant to Navy protocol. A then spoke with
her superior and the Navys Sexual Assault Response
Coordinator. She slept overnight in her superiors office and
returned to her apartment on the morning of November 6, 2015,
after her shift had ended.
that morning, Officers Bridget Nordstrom, Jesse Comeau, and
Darren Kenyon, all of the Groton Police Department, arrived
at the apartment to investigate the alleged incident.
Nordstrom spoke with A in the apartment while Comeau and
Kenyon spoke with the defendant on the balcony. The content
of the defendants conversation with Comeau and Kenyon, as
set forth in detail later in this opinion, is disputed. The
defendant subsequently was arrested and charged with sexual
assault in a cohabiting relationship in violation of §
53a-70b, strangulation in the second degree in violation of
General Statutes § 53a-64bb, and assault in the third degree
in violation of § 53a-61 (a) (1).
trial, in addition to testifying in detail about the events
of November 5, 2015, A explained her belief that the
defendant had been drinking heavily before he assaulted her.
The jury also heard testimony from As coworkers about the
marks on her neck and her partial disclosure of the incident.
Photographs of As injuries, which corroborated her testimony
of the assault, were introduced into evidence, and four video
recordings from the defendants cell phone, taken by him at
various times during the incident, were shown to the jury. A
further testified that the sexual assault occurred between
the third and fourth video, and the jury reasonably could
have found that the noticeable change in her appearance
between those two videos, specifically her hair being
"messed up," supported her story.
Conn. 538] At trial, Comeau testified that, on the day after
the incident, the defendant told him and Kenyon that he had
been drinking the previous day and did not remember what had
happened. Comeau explained: "We asked him if he drank
enough that he considered himself to be blacked out, and he
said no, he didnt think so, but he did not recall any
details." Comeau also testified that the defendant
"did not recall making the video."
the state rested, the defendant testified on his own behalf.
The defendant acknowledged that he and A had engaged in oral
sex on the date in question but said that it was initiated by
A. Further, he characterized it as completely consensual in
nature and testified that he was not forceful or rough during
the oral sex and
that at no point did A communicate that she wanted it to
stop. The defendant denied the occurrence of any other sexual
activity with A that day, or any biting, and he attributed
As injuries to her light skin color and the physical nature
of her job. He also explained that As hair became tousled
after the third video because he innocently ruffled her hair,
as he had done on prior occasions. The defendants testimony
also differed materially from the version of events as
related to the jury by Comeau. On direct examination, the
defendant testified that he never told the officers that he
could not remember what had happened the prior day. He agreed
that the officers asked him if he had consumed enough alcohol
to black out, and that he had responded to that inquiry by
saying "no." The defendant then testified as
"Q. Did [Comeau] ever ask you to provide any details of
the days events, the day before?
"A. He asked me to— yeah. He said, would you like
to speak to me about what happened?
"Q. What did you say?
Conn. 539] "Q. Whyd you say no?
"A. Because theres a stigma with the police that if you
tell them anything, no matter it be good or bad, its
definitely going to haunt you later.
"A. And without any legal [representation] whatsoever, I
wasnt gonna— I wasnt gonna go through that.
"A. Because its two officers outside and me. They could