October 19, 2018
information charging the defendant with the crimes of sexual
assault in a cohabiting relationship, strangulation in the
second degree and assault in the third degree, brought to the
Superior Court in the judicial district of New London and
tried to the jury before Jongbloed, J.; verdict and
judgment of guilty of sexual assault in a cohabiting
relationship and assault in the third degree, from which the
defendant appealed. Affirmed.
J. Steele, assigned counsel, for the appellant (defendant).
Lawrence J. Tytla, supervisory assistant state's
attorney, with whom, on the brief, was Michael L. Regan,
state's attorney, for the appellee (state).
Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins,
Kahn and Ecker, Js.
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 defendant's
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.''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
prosecutor's 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 prosecutor's 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 defendant's 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.
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
A's request that he stop. The defendant began to bite
A's 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, A's coworker and supervisor observed
marks on her neck. A disclosed to her 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 Navy's Sexual Assault Response Coordinator. She slept
overnight in her superior's office and returned to her
apartment on the morning of November 6, 2015, after her shift
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 defendant's 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 A's coworkers about
the marks on her neck and her partial disclosure of the
incident. Photographs of A's injuries, which corroborated
her testimony of the assault, were introduced into evidence,
and four video recordings from the defendant's 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
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 didn't 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 A's injuries to her light skin color and the
physical nature of her job. He also explained that A's
hair became tousled after the third video because he
innocently ruffled her hair, as he had done on prior
occasions. The defendant's 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 day's 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?
‘‘Q. Why'd you say no?
‘‘A. Because there's a stigma with the police
that if you tell them anything, no matter it be good or bad,
it's definitely going to haunt you later.
‘‘A. And without any legal [representation]
whatsoever, I wasn't gonna-I wasn't gonna go through
‘‘A. Because it's two officers outside and
me. They could say I said anything.
‘‘Q. Right. So you thought it [would be] better
to keep quiet.
defendant acknowledged that he unlocked his phone for the
officers so that they could see the videos.
prosecutor's cross-examination of the defendant involved
the following relevant exchange:
‘‘Q. . . . [T]his is [the] first time you've
shared your account of what happened on November 5, 2016,
publicly, is it not?
‘‘A. With-within this type of environment, yes. I
had a lawyer previously before I had [my current trial
‘‘Q. You never shared any of this information
with the police when they were investigating the matter, did
‘‘Q. In fact, when the officers took you outside
and spoke to you, you told them that you didn't remember
anything about what happened the day before; ...