Opinion
No. 19278.
03-19-2015
STATE of Connecticut v. FELIX R.
James M. Ralls, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, senior assistant state's attorney, for the appellant (state). Stacey Van Malden, pro hac vice, with whom, on the brief, was Robert C. Ross, West Haven, for the appellee (defendant). ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
James M. Ralls, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, senior assistant state's attorney, for the appellant (state).
Stacey Van Malden, pro hac vice, with whom, on the brief, was Robert C. Ross, West Haven, for the appellee (defendant).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion
ESPINOSA, J.
The sole issue in this certified appeal is whether the Appellate Court properly concluded that the prosecutor had deprived the defendant of his due process right to a fair trial by engaging in prosecutorial impropriety during closing argument. The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the judgment of the trial court convicting the defendant, Felix R., of two counts of sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1), two counts of sexual assault in the third degree in violation of General Statutes § 53a–72a(a)(2), one count of sexual assault in the fourth degree in violation of General Statutes § 53a–73a(a)(1)(E), and three counts of risk of injury to a child in violation of General Statutes § 53–21(a)(2). The state claims that the Appellate Court improperly determined that prosecutorial improprieties occurred and that those improprieties deprived the defendant of a fair trial. We conclude that the majority of the challenged remarks were not improper. As to the remaining remark, although the state has conceded that it was improper, we conclude that that comment did not deprive the defendant of a fair trial and, accordingly, we reverse the judgment of the Appellate Court.
We granted the state's petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly reverse the judgment against the defendant based upon prosecutorial improprieties?” State v. Felix R., 311 Conn. 915, 84 A.3d 883 (2014).
In addition to a comment referring to matters not in evidence, which the majority agrees was improper, most significantly, Pepper stated that since the day the victim confided in her guidance counselor, the victim has “been in foster care, but that didn't end the trauma, ladies and gentlemen. She was interviewed by strangers. She was poked and prodded by doctors and nurses. She had a miscarriage. And she had to relive the whole experience here, facing you and the defendant, and telling you what happened to her over the period of four years. And she had to recite to you who she had sex with and who she hasn't, because of what that man did to her and said about her during the investigation of this case. I had to ask her ... did you ever post a photograph of yourself on the web with a penis in your face? I had to ask her that question in front of strangers, because of what that man said and did to her.” (Emphasis added.)In rebuttal argument, Pepper gave his personal opinion about the defendant's guilt when he further stated: “Every time he slandered her, we find out it's not true. Why? Why this campaign of disinformation against his daughter? Well, I submit, ladies and gentlemen, what would you expect from someone who molests a twelve year old, even your own daughter? I submit, ladies and gentlemen, he was trying to deceive and deflect the investigation of this case from the very beginning.” (Emphasis added.)
The Appellate Court set forth the following relevant facts, which the jury reasonably could have found. “The [victim], the defendant's daughter, was born in the Dominican Republic to parents who never married one another. The defendant moved to the United States, and the [victim] continued to live with her mother in the Dominican Republic until 2005 when she moved to the United States to live with the defendant and her paternal grandmother. At the time she came to the United States, [the victim] was ten years old and spoke no English....
“The defendant began to touch the [victim] in a sexual manner approximately three months after she arrived in Connecticut. On occasion the defendant tried to kiss her and have her touch his penis. In 2006, the defendant took the [victim] to a [child guidance] clinic because she wept frequently, was having difficulty sleeping, and was anxious. When she was seen at the clinic, the [victim] did not mention the defendant's sexual advances toward her because the defendant had threatened to hurt her if she told anyone about it....
“The [victim] attempted to tell her mother about the defendant's sexual advances by writing her a letter. She asked the defendant to deliver the letter when he traveled to the Dominican Republic. The [victim] does not know whether her mother ever received the letter. In late 2007 or early 2008, the [victim] and the defendant together visited the Dominican Republic. During their visit, the [victim] told her paternal aunt that the defendant abused her. The paternal aunt confronted the defendant, who denied the accusations of abuse.... In late 2008, the [victim's] maternal aunt, Mercedes, asked the [victim] about a letter in which the [victim] had stated that she did not want to live with the defendant and threatened to commit suicide. The [victim] told Mercedes that the contents of the letter were untrue. In March, 2009, a representative of the Department of Children and Families (department) visited the [victim] at her school. When the representative from the department asked the [victim] whether she was being sexually abused, the [victim] gave a negative response. The [victim] later stated that she was afraid to tell anyone about the defendant's sexual advances because she was fearful; the defendant was sometimes aggressive. The [victim] did not know who had contacted the department about her situation.
“On the morning of May 9, 2009, when the [victim] was fourteen, the defendant awakened her by touching her breasts. The defendant held the [victim's] hands above her head and took off her pajamas. The [victim] asked the defendant to stop, but he covered her mouth, told her to shut up, and forced her to engage in sexual intercourse. The defendant used a condom, but it broke. The [victim] saw ‘white stuff’ in the broken condom and on her body. The defendant instructed the [victim] not to tell anyone what had occurred. Later that morning, the defendant purchased a pregnancy test and Plan B (morning after pill). He directed the [victim] to take one of the morning after pills and gave her a second pill approximately twelve hours later. On May 12, 2009, the defendant gave the [victim] a pregnancy test, which produced a negative result....
“On ... May 28, 2009, the defendant touched the [victim] while she was sleeping. The [victim] awakened, pushed the defendant away, and slapped him. The defendant left the [victim] alone but warned her not to tell anyone or he would do something to her.
“The [victim] went to school and reported the defendant's sexual abuse to her guidance counselor. She told her guidance counselor that the defendant had touched her breasts that morning and had done so many times previously. She also told him that the defendant had penetrated her and threatened to send her back to the Dominican Republic if she told anyone about it. Moreover, the [victim] also stated that she was afraid to go home from school. The guidance counselor telephoned the department hotline to report what the [victim] had told him.... The department placed the [victim] in foster care that day.
“Later, on the evening of May 28, 2009, department personnel informed the defendant of the [victim's] accusations and that she was being removed from his home. The defendant denied having abused the [victim].... He claimed that the [victim] was angry with him for having confronted her about [a] boy. He acknowledged, however, that during the previous year, the [victim's] mother had accused him of having sexually abused the [victim].
“Detective John Ventura [of the Wallingford Police Department] interviewed the defendant. The defendant told Ventura that, on a couple of occasions, he had taken the [victim] to the hospital for an evaluation because he thought she was having sex with a boy. The defendant claimed that the hospital had refused to see the [victim] on those occasions for ‘ethical reasons.’ The defendant also informed Ventura that the [victim] slept in his bed because she was not getting along with her paternal grandmother, and that he saw nothing wrong with the [victim] sleeping with him. When Ventura asked the defendant if he had purchased a pregnancy test for the [victim], the defendant became excited and extremely nervous. He denied having purchased a pregnancy test and claimed that the [victim] had used his credit card without telling him why. He also denied that he had bought the [victim] a morning after pill.
“The following day, however, the defendant telephoned Ventura and admitted that he had purchased a morning after pill and a pregnancy test for the [victim]. The defendant's credit card statement, a Walgreens electronic report and its surveillance photographs confirmed that the defendant had made the subject purchases at 10:02 a.m. on May 9, 2009. The defendant explained to Ventura that he had not been truthful when Ventura was questioning him because he was embarrassed that the [victim] was having unprotected sex with boys.
“On June 1, 2009, a social worker from the Yale Child Sexual Abuse Clinic, Theresa Montelli, conducted a forensic interview of the [victim]. Although the [victim] told Montelli that no one other than the defendant had ever touched her sexually, she testified at trial that she had had sex with two boys.
“In early June, 2009, a pediatric nurse practitioner, Janet Murphy, conducted a physical examination of the [victim]. According to Murphy, the [victim's] vaginal examination was normal, which was not dispositive of whether the [victim] had had sexual intercourse. The [victim's] blood and urine tests, however, indicated she was pregnant. Within days of Murphy's examination, the [victim] had a miscarriage while she was at school. Although medical tests were inconclusive as to who had impregnated her, Beth Rackow, an obstetrician and gynecologist who examined the [victim] on June 8, 2009, testified that the [victim's] pregnancy was consistent with her having had sexual intercourse and become pregnant on May 9, 2009, notwithstanding the negative May 12, 2009 pregnancy test....
“In mid-June, 2009, department social workers Anamaris Colon and [Tira] Gant met with the defendant to inform him that the department was considering placing the [victim] with one of her maternal aunts, either Elka or Mercedes, in New York. The defendant objected to placing the [victim] with her maternal aunts ... claiming that they would not be good supervisors. He asserted that, when the [victim] had visited her aunts during the Memorial Day weekend, she had run away for fourteen hours and had sex with a boy named Jonathan. The [victim], Mercedes, and the New York equivalent of the department denied that the [victim] had run away for fourteen hours. The defendant reported to Colon and Gant that the [victim] ‘was pretty much loose with the boys' and that she had accused him of sexual assault because she was afraid that he would punish her. He also reported that the [victim] had posted an image of her face and a penis on her social network website. The [victim] provided Colon with access to the website, but Colon was unable to locate the alleged image during an extended search....
“The defendant was arrested in January, 2010, and charged with various crimes. A jury trial was held in May, 2011. Given the lack of direct evidence, the [victim's] credibility was a principal issue at trial. The evidence focused not only on her allegations against the defendant, but also on when and with whom she had had sexual relations. The defendant attempted to impeach the [victim's] credibility by highlighting inconsistencies between her trial testimony and her out-of-court statements. The jury found the defendant guilty of all charges.” (Footnotes omitted.) State v. Felix R., 147 Conn.App. 206, 208–15, 83 A.3d 619 (2013). The defendant appealed from the judgment of conviction to the Appellate Court, claiming that the prosecutor's statements during closing argument violated his right to a fair trial. Id., at 208, 83 A.3d 619. The Appellate Court reversed the defendant's conviction and remanded the case for a new trial. Id., at 232, 83 A.3d 619. This certified appeal followed.
We first set forth the general principles under which we review claims of prosecutorial impropriety. “[W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show, not only that the remarks were improper, but also that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process. State v. Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012). In analyzing whether the prosecutor's comments deprived the defendant of a fair trial, we generally “determine, first, whether the [prosecutor] committed any impropriety and, second, whether the impropriety or improprieties deprived the defendant of a fair trial.” State v. Fauci, 282 Conn. 23, 35, 917 A.2d 978 (2007).
I
We first consider whether the prosecutor's statements were improper. We recognize that “[impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question....” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 361–62, 897 A.2d 569 (2006). When reviewing the propriety of a prosecutor's statements, “we do not scrutinize each individual comment in a vacuum but, rather, review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) State v. Fauci, supra, 282 Conn. at 45, 917 A.2d 978. Finally, when a prosecutor's potentially improper remarks are ambiguous, “a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. Donnelly v. DeChristoforo, 416 U.S. 637, 646–47, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)....” (Citation omitted; internal quotation marks omitted.) State v. Haase, 243 Conn. 324, 336, 702 A.2d 1187 (1997), cert. denied, 523 U.S. 1111, 118 S.Ct. 1685, 140 L.Ed.2d 822 (1998).
The defendant argues that the prosecutor's statements during closing argument fall into four distinct categories of impropriety: (1) appeals to the emotions of the jurors; (2) commentary on the defendant's exercise of his right to confrontation under the sixth and fourteenth amendments to the United States constitution; (3) expressions of personal opinion as to the defendant's guilt and the credibility of witnesses; and (4) reference to a fact not introduced into evidence. We will examine each category of alleged impropriety in turn.
First, the defendant argues that the prosecutor made emotional appeals to the jury in order to evoke sympathy for the victim and to raise ire against the defendant. An appeal to emotions “improperly diverts the jury's attention away from the facts and makes it more difficult for it to decide the case on the evidence in the record.” State v. Alexander, 254 Conn. 290, 307, 755 A.2d 868 (2000). An appeal to emotions invites the jury to instead reach a decision based on “powerful and irrelevant factors....” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 719, 793 A.2d 226 (2002). The defendant focuses on a particular group of statements wherein the prosecutor recounted the difficulties that the victim faced during the investigation and trial. The prosecutor stated to the jury that the victim “was interviewed by strangers ... was poked and prodded by doctors ... had a miscarriage ... had to relive the whole experience here” and “had to recite to you who she had sex with and who she hasn't....”
Although in isolation these statements could under certain circumstances be construed as fanning the flames of emotion, when put into the context of the entire trial and closing argument, the incendiary potential of the statements is extinguished. The prosecutor was reiterating the state's principal theory—that the victim would not have willingly chosen to undergo such difficulties if she were lying. We have recognized this line of argument as acceptable in previous cases. State v. Warholic, supra, 278 Conn. at 365–66, 897 A.2d 569 (proper for prosecutor to argue that minor complainant would not have gone through testifying unless telling truth); State v. Burton, 258 Conn. 153, 170, 778 A.2d 955 (2001) (proper for state to argue that witness lacked motive to lie). Furthermore, all of the victim's travails were already familiar to the jury, who had heard them described exhaustively in testimony from social workers, medical professionals, and the victim herself. Although the underlying crime was, by its nature, inherently charged with emotion, the prosecutor did not invite the jurors to disregard the facts of the case in favor of their emotions. Rather, the state was summarizing evidence that supported its theory of the case. Therefore, the prosecutor's comments were not improper in this regard.
Second, the defendant argues that the prosecutor invited the jury to draw adverse inferences from the defendant's exercise of his sixth and fourteenth amendment confrontation clause rights. A prosecutor may not “invite the jury to draw an inference of guilt solely based on the defendant's exercise of his constitutional right to be present at trial and confront ... witness [es].” State v. Alexander, supra, 254 Conn. at 299, 755 A.2d 868. The defendant focuses on the prosecutor's remarks that the victim “had to relive the whole experience here, facing [the jury] and the defendant, and telling [the jury] what happened to her ... [a]nd she had to recite to you who she had sex with and who she hasn't ... I had to ask her ... did you ever post a photograph of yourself on the web with a penis in your face? I had to ask her that question in front of strangers, because of what that man said and did to her.” (Emphasis added.) These statements immediately followed the prosecutor's remarks listing the difficulties that the victim faced during the investigation. The defendant construes these remarks as an impermissible comment on his enumerated right to confront the witnesses against him at a public trial. According to the defendant, in light of the fact that the state called the victim as a witness, the prosecutor's refrain that the victim “had” to relive her abuse through testifying was a comment on the defendant's right to proceed to trial and confront witnesses.
Conversely, the state contends that the prosecutor's statements were not in reference to the defendant's constitutional rights, but, rather, a guileless articulation of the state's overarching dual theory of the case: that the victim had no motive to lie and gained no benefit in reporting the abuse and that the defendant had a strong motive to lie and deceive investigators. Indeed, the entirety of the closing argument is peppered with iterations of this theme. The prosecutor repeatedly asked the jury, “what motive does [the victim] have to come in here and sit there and say my father sexually abused me ... ?” He even concluded the state's argument by requesting that the jurors ask themselves one question: “Why would [the victim] get up on the stand and say what she did?” Thus, in context, it is ambiguous as to whether the prosecutor was referring to the defendant's confrontation rights or to the state's need to demonstrate the credibility of the victim and the falsity of the defendant's statements. An impartial reading of the remarks reveals that both interpretations are plausible.
In our prior decisions addressing alleged prosecutorial impropriety, we have stated that a prosecutor's ambiguous remarks will not be ascribed their most damaging interpretation in the minds of the jurors. See, e.g., State v. Ciullo, 314 Conn. 28, 48, 100 A.3d 779 (2014); State v. Warholic, supra, 278 Conn. at 368, 897 A.2d 569; State v. Haase, supra, 243 Conn. at 335–36, 702 A.2d 1187; State v. Marra, 222 Conn. 506, 533–34, 610 A.2d 1113 (1992). Consistent with that principle, we recognize that “[c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Maguire, 310 Conn. 535, 553, 78 A.3d 828 (2013).
We accept the state's suggestion, proposed at oral argument before this court, that it would be helpful for us to clarify the meaning of “ambiguous” in the context of prosecutorial impropriety. To draw from the realm of statutory interpretation, language is deemed ambiguous “when read in context, [it] is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) State v. Buckland, 313 Conn. 205, 224, 96 A.3d 1163 (2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 992, 190 L.Ed.2d 837 (2015). To be clear, in furtherance of our policy of not assigning ambiguous remarks their most damaging interpretation from an array of less damaging interpretations, in those cases where a prosecutor's allegedly improper statements are genuinely ambiguous, the ambiguity will be construed in favor of the state. Put another way, for the purpose of determining whether a challenged remark is improper, when selecting among multiple, plausible interpretations of the language, this court will assign the remark the less damaging, plausible meaning. Accordingly, because the prosecutor's comment that the victim “had” to testify “because of what that man said and did to her” is ambiguous, we read the remark to refer, albeit imprecisely, to the state's overarching theme: the victim had no motive to lie and the defendant did. The remarks, therefore, were not improper.
The legal definition of “ambiguous” that courts employ when conducting statutory interpretation is, with minor variations, equivalent to its colloquial definition. See, e.g., The Random House Dictionary of the English Language (2d Ed.1987) p. 64 (“open to or having several possible meanings or interpretations”); The American Heritage Dictionary of the English Language (5th Ed.2011) p. 56 (“[o]pen to more than one interpretation”); Merriam–Webster's Collegiate Dictionary (11th Ed.2003) p. 39 (“capable of being understood in two or more possible senses or ways”); The Oxford English Dictionary (2d Ed.1989) p. 386 (“[a]dmitting more than one interpretation, or explanation; of double meaning, or of several possible meanings”). Although the definition we use here is legal both in its origin and use, that definition of “ambiguous” reflects a common understanding of the meaning of the word.
See State v. Ceballos, 266 Conn. 364, 367, 832 A.2d 14 (2003) (reversing judgment on due process grounds due to improper conduct by Pepper during questioning of witnesses and closing argument); State v. Payne, 260 Conn. 446, 447–49, 797 A.2d 1088 (2002) (reversing judgment under supervisory authority due to improper comments by Pepper during closing argument); State v. Butler, 255 Conn. 828, 829–30, 769 A.2d 697 (2001) (affirming Appellate Court's judgment reversing conviction on due process grounds due to improper comments by Pepper during closing argument); see also State v. Moody, 77 Conn.App. 197, 217–18, 822 A.2d 990 (concluding that Pepper improperly asked defendant to comment on veracity of other witnesses but concluding that impropriety did not deprive defendant of fair trial), cert. denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S.Ct. 831, 157 L.Ed.2d 714 (2003); State v. Lacks, 58 Conn.App. 412, 422–24, 755 A.2d 254 (recognizing that Pepper improperly commented on credibility of witnesses in closing argument but concluding that remarks were not so pervasive or egregious to have violated defendant's right to fair trial), cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).
Third, the defendant alleges that the prosecutor improperly provided his personal opinion as to the defendant's credibility and guilt. It is a fundamental principle that “a prosecutor may not express [his or] her own opinion, either directly or indirectly, as to the credibility of a witness or the guilt of the defendant.” State v. Alexander, supra, 254 Conn. at 304, 755 A.2d 868. A prosecutor may, however, argue that a witness testified credibly or had a motive to lie “if such an argument is based on reasonable inferences drawn from the evidence.” State v. Warholic, supra, 278 Conn. at 365, 897 A.2d 569. Additionally, “the prosecutor may argue for the reasonable inferences that the jury may draw from the evidence adduced at trial, including the defendant's commission of the crime.” Id., at 367, 897 A.2d 569.
The defendant focuses on the following remarks of the prosecutor as evidence that the prosecutor opined on his guilt and credibility: “[E]very crazy, outlandish claim the defendant made about his daughter over that period of time was rebutted. Every time he slandered her, we find out it's not true. Why? Why this campaign of disinformation against his daughter? Well, I submit, ladies and gentlemen, what would you expect from someone who molests a twelve year old, even your own daughter? I submit, ladies and gentlemen, he was trying to deceive and deflect the investigation of this case from the very beginning.” (Emphasis added.) The defendant also alleges that the prosecutor's earlier remark that the victim had to testify “because of what that man said and did to her” improperly opined upon his guilt.
Again, we are faced with vying, reasonable interpretations of the prosecutor's remarks. The defendant reads the remarks as the prosecutor informing the jury that he believed the defendant to be guilty and unreliable, whereas the state asserts that the remarks reiterated the prosecution's theory that the defendant had a motive to lie during the investigation given the nature of the charges against him, as a defendant accused of sexually assaulting his own daughter would not be expected to freely admit such an act. The state itself acknowledges that the prosecutor's words were imprecise and that they are ambiguous as to whether the prosecutor was referring to what the defendant did during the investigation or to his guilt in the underlying crimes. Indeed, the prosecutor's phrase “someone who molests” suggests guilt in a way that a phrase such as “someone accused of molesting” does not. Conversely, the same comment may be read as the prosecutor inviting the jury to draw an inference as to the defendant's guilt and credibility based on the evidence at trial, particularly the contradicted and uncorroborated statements he made to investigators. Due to the multiple reasonable interpretations of the remarks, we construe the ambiguity in favor of the state. The prosecutor's remarks, therefore, were not improper. We emphasize that our decisions that have construed ambiguous language in favor of the state do not establish a bright line rule. The impropriety of a prosecutor's remarks is a fact centered inquiry, which must be determined on a case-by-case basis. For instance, at a certain point, the sheer number of ambiguous statements that have a possibly improper meaning made by a prosecutor during the course of a trial deprive the state of the presumption that such remarks are the result of inartfulness and instead demonstrate a pattern of impropriety. The record in the present case does not demonstrate such a pattern.
Fourth, the defendant argues that the prosecutor improperly referred to a fact not introduced into evidence. We recognize that “[s]tatements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” State v. Ceballos, 266 Conn. 364, 400, 832 A.2d 14 (2003). While summarizing the testimony of Murphy, the pediatric nurse practitioner who examined the victim, the prosecutor stated: “[Murphy] said the first pregnancy test we got was positive.... We got to administer this again. It's shocking for people in the medical profession.... [T]hey administered a second pregnancy test, which was again positive.” (Emphasis added.) The state concedes that this comment referred to a fact not in evidence and, indeed, nothing in Murphy's testimony suggests that the pregnancy test results were shocking. Accordingly, the comment was improper and we will review it as such.
II
We must now determine whether the prosecutor's statement that the results of the victim's pregnancy test were “shocking for people in the medical profession” deprived the defendant of his due process right to a fair trial. In conducting our inquiry, rather than analyzing individual statements in isolation, we ask “whether the trial as a whole was fundamentally unfair and [whether] the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) State v. Ceballos, supra, 266 Conn. at 408, 832 A.2d 14. In determining whether prosecutorial improprieties violated the defendant's due process rights, we examine six factors: “[1] the extent to which the [impropriety] was invited by defense conduct or argument ... [2] the severity of the [impropriety] ... [3] the frequency of the [impropriety] ... [4] the centrality of the [impropriety] to the critical issues in the case ... [5] the strength of the curative measures adopted ... and [6] the strength of the state's case.” (Citations omitted.) State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). We examine each factor in turn and conclude that the prosecutor's statement in the present case did not impermissibly infringe on the defendant's due process rights such that he was deprived of a fair trial.
First, the prosecutor's statement was not invited by any of defense counsel's conduct or statements at trial. At no point in the trial did the defense call into question Murphy's testimony about the pregnancy test or provide the prosecutor with any other grounds for his comment. Second, the prosecutor's improper statement was not severe. When evaluating the severity of the impropriety, “we take into consideration whether defense counsel objected to any of the improper remarks, requested curative instructions, or moved for a mistrial.” (Internal quotation marks omitted.) State v. Warholic, supra, 278 Conn. at 398, 897 A.2d 569. Significantly, defense counsel failed to object to the impropriety at trial and we therefore presume that counsel did not consider the impropriety severe enough to merit an objection. Third, the prosecutor's impropriety was not frequent. Improper statements that are “minor and isolated” will generally not taint the overall fairness of an entire trial. State v. Payne, supra, 303 Conn. at 565, 34 A.3d 370; id., at 567, 34 A.3d 370 (defendant's due process rights not violated when prosecutor's improper remarks were brief and confined to closing argument). In the present case, the prosecutor's improper statement was a single statement buried in a lengthy closing argument and was not repeated. See State v. Maguire, supra, 310 Conn. at 556, 78 A.3d 828 (improprieties were frequent when prosecutor's “disparaging refrain” was “repeated over and over for dramatic effect”); State v. Williams, supra, 204 Conn. at 546–47, 529 A.2d 653 (prosecutor repeatedly described defendant with pejorative language). Fourth, the improper statement was not central to the critical issues of the case. To resolve the case, the jury was required to make a determination regarding the victim's credibility, rather than the accuracy of the pregnancy tests or medical procedures employed by the various medical personnel who testified. Fifth, the trial court's general jury instruction was sufficiently curative. We recognize that general jury instructions can cure the potential effects of minor prosecutorial improprieties. See State v. Payne, supra, 303 Conn. at 567–68, 34 A.3d 370; State v. Haase, supra, 243 Conn. at 337, 702 A.2d 1187. In such cases, “we presume the jury ... followed [the court's instruction] in the absence of any indication to the contrary.” State v. Collins, 299 Conn. 567, 590, 10 A.3d 1005, cert. denied, ––– U.S. ––––, 132 S.Ct. 314, 181 L.Ed.2d 193 (2011). In the present case, the trial court specifically instructed the jury to disregard “conclusions of facts which have not been produced in evidence.” As that instruction addresses the very impropriety alleged here, and there is no indication that the jury did not adhere to it, we conclude that it was sufficiently curative.
Finally, we analyze the strength of the state's case. See State v. Williams, supra, 204 Conn. at 540, 529 A.2d 653. In sexual abuse cases, while “the absence of conclusive physical evidence of sexual abuse does not automatically render [the state's] case weak, that same absence surely does not strengthen the state's case....” State v. Ceballos, supra, 266 Conn. at 416, 832 A.2d 14. The sexual abuse of children is a crime which, by its very nature, occurs under a cloak of secrecy and darkness. It is not surprising, therefore, for there to be a lack of corroborating physical evidence in cases that are factually similar to the present case, where the victim submitted to the sexual abuse of her father in the face of his threats to physically harm her and send her back to the Dominican Republic if she told anyone. Given the rarity of physical evidence in these circumstances, a case is not automatically weak just because a child's will was overborne and he or she submitted to the abuse of his or her own parent. To conclude otherwise would place an insurmountable obstacle in the path of many sexual assault prosecutions.
We therefore conclude that the state's case was not weak due to the lack of conclusive physical evidence corroborating sexual assault, especially given the corroborating evidence introduced at trial. Much of the corroborating evidence that the state presented at trial was untarnished by the prosecutor's improper remark. For example, the prosecutor's comment did not reference the defendant's purchase of a pregnancy test and morning after pills, the corroborating testimony of the social workers and police that handled and investigated the victim's case, or the testimony of the victim herself, all of which was likely persuasive to the jury. The jury was in the best position to evaluate the victim's credibility against the credibility of the defendant's pretrial statements to investigators and the jury ultimately found the victim's testimony credible, despite the lack of corroborating physical evidence.
In sum, we conclude that the defendant was not deprived of his due process right to a fair trial. Though the prosecutor's improper remark was uninvited by the defense, the severity of the improper comment was minimal, confined to closing argument, did not bear on a central issue in the case, and was rectified by the trial court's general instructions to the jury. Accordingly, we do not find it likely that the prosecutor's brief remark would have convinced an entire panel of jurors to disregard their sworn duty and return a verdict founded on impermissible inferences rather than the weight of the evidence before them.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to render judgment affirming the judgment of the trial court.
In this opinion ROGERS, C.J., and ZARELLA, EVELEIGH and ROBINSON, Js., concurred.
McDONALD, J., with whom PALMER, J., joins, concurring.
The comments of Michael A. Pepper, the senior assistant state's attorney in the present case, clearly conveyed a message to the jury that the defendant, Felix R., should be blamed for compelling the victim to endure the effects of an investigation into her allegations and to have to testify at trial about the basis of those allegations. Pepper's comments sought to invoke sympathy for the victim while impugning the defendant's constitutional right to confront witnesses against him, to mount a defense, and to hold the state to its burden of proving his guilt beyond a reasonable doubt.1 The comments were improper and egregious. In concluding that all but one of Pepper's comments were not improper because they were ambiguous, contrary to the interpretation of the unanimous Appellate Court panel; see State v. Felix R., 147 Conn.App. 206, 220–27, 83 A.3d 619 (2013); the majority disassembles the statements from the context in which they were made, and then constructs a strained interpretation of each to yield the ambiguity the majority creates. Of even greater concern, the majority imports our rules of statutory construction for assessing ambiguity that have no place in evaluating whether the prosecution's argument violated the defendant's constitutional right to a fair trial. Compounding these errors, the majority suggests that multiple ambiguous statements could demonstrate “a pattern” that would deprive the prosecutor's comments of a presumption of propriety, but inexplicably fails to recognize what the collective force of Pepper's statements in the present case manifestly reveals. Indeed, this would seem to be a particularly inapt case to apply such a presumption in light of the past occasions on which this particular senior assistant state's attorney has been found to have exceeded the bounds of proper argument.2
Therefore, I agree with the Appellate Court that Pepper committed prosecutorial impropriety during the course of closing argument. I part company with the Appellate Court, however, with respect to the question of whether the improprieties deprived the defendant of a fair trial. In resolving that question, “we consider: (1) the extent to which the [impropriety] was invited by defense conduct or argument; (2) the severity of the [impropriety]; (3) the frequency of the [impropriety]; (4) the centrality of the [impropriety] to the critical issues in the case; (5) the strength of the curative measures adopted; and (6) the strength of the state's case.” (Internal quotation marks omitted.) State v. Angel T., 292 Conn. 262, 287, 973 A.2d 1207 (2009). I agree with the Appellate Court that the first, second, and fourth factors weigh in the defendant's favor. See State v. Felix R., supra, 147 Conn.App. at 228–29, 83 A.3d 619. With respect to the third and fifth factors, as the Appellate Court recognized, the impropriety was limited to closing argument and no curative measures were taken because the defendant raised no objection. Id.
I am not persuaded, however, that the Appellate Court gave due weight to the final factor, the strength of the state's case. The victim reported the defendant's abuse to her paternal aunt in late 2007, or early 2008, well before the defendant alleges that he confronted the victim about her involvement with a boy, his claimed motive for her May, 2009 reports of abuse to her maternal aunt and guidance counselor. The victim's mother found the earlier accusation sufficiently credible that she confronted him about it. Most significantly, the defendant's response to questioning by Detective John Ventura of the Wallingford Police Department manifestly reveals the defendant's lack of credibility and consciousness of guilt. The defendant's excited and extremely nervous reaction to Ventura's questions about whether the defendant had purchased a pregnancy test and “morning after” pill for the victim, and his false answers to those questions, was reflective of guilt. No reasonable jury would find credible the defendant's subsequent admission to Ventura that he had lied about such matters when being investigated for abuse because he was embarrassed that the victim was having unprotected sex. Indeed, the defendant was not too embarrassed to level that same accusation against the victim when previously confronted by social workers with the Department of Children and Families. Therefore, despite the fact that certain remarks during closing argument were clearly egregious, I am compelled to conclude that there was not a reasonable likelihood that the jury's verdict would have been different absent the improper remarks, in light of the defendant's own conduct, the constancy of accusation evidence, and the victim's testimony. See State v. Long, 293 Conn. 31, 37, 975 A.2d 660 (2009) (“[t]he question of whether the defendant has been prejudiced by prosecutorial [impropriety] ... depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties” [internal quotation marks omitted] ).
In its responsive brief to this court, the defendant summarily suggests that this court could affirm the Appellate Court's judgment reversing the defendant's conviction on the alternative basis of this court's supervisory authority. The defendant did not file a statement of an alternative ground for affirmance, and the state did not have notice to address this claim in its main brief. Therefore, I decline to address whether reversal is warranted on this alternative ground. Had such a claim been raised and adequately briefed, the past history of the senior assistant state's attorney may have weighed heavily in favor of the exercise of such authority.
Despite this conclusion, I take this opportunity to address the significant flaw in the majority's approach to the question of ambiguity. “[W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show, not only that the remarks were improper, but also that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.” State v. Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012). At best, this should mean that the defendant must demonstrate that it is more likely than not that the remarks were improper. As such, the defendant would meet his burden by showing that it is more likely than not that the jury would have understood the comments to intimate that the jury could or should decide the case on the basis of improper considerations. Thus, irrespective of whether there is a plausible construction of the prosecutor's comments that could state a proper argument, unless that meaning is equally or more likely to be adopted by the jury than the one stating an improper argument, the defendant should meet his burden of proof.
The majority takes a different tact. It concludes that no impropriety arises when a prosecutor's remarks could be viewed as ambiguous, unless there is a clear (and apparently overwhelming) pattern of such remarks. To determine whether such an ambiguity exists, the majority deems our rules of statutory construction the proper measure. This approach raises both substantive and pragmatic concerns.
As a substantive matter, it imposes a greater burden on the defendant than is required. Under our rules of statutory construction, an ambiguity arises whenever statutory language is subject to more than one plausible interpretation. See State v. Pond, 315 Conn. 451, 468, 108 A.3d 1083 (2015) (“[b]ecause the statutory language is subject to multiple, plausible interpretations, and it does not expressly address or resolve the certified question, [General Statutes] § 53a–48 [a] is facially ambiguous”); Commissioner of Correction v. Freedom of Information Commission, 307 Conn. 53, 68, 52 A.3d 636 (2012) (“[b]ecause we believe that both of these interpretations are plausible, we conclude that the language of the first sentence of 8 C.F.R. § 236.6 is ambiguous”); State v. Johnson, 301 Conn. 630, 650, 26 A.3d 59 (2011) (“[w]e conclude that, because both interpretations are plausible, the statute is ambiguous”); State v. Orr, 291 Conn. 642, 654, 969 A.2d 750 (2009) (“our case law is clear that ambiguity exists only if the statutory language at issue is susceptible to more than one plausible interpretation”). Ambiguity, as a matter of statutory construction, does not require two or more equally reasonable interpretations. Thus, under the majority's approach, any plausible construction will defeat the defendant's claim of impropriety, even if the defendant's interpretation is by far the more reasonable one. In effect, the majority requires the defendant to prove beyond a reasonable doubt that an impropriety occurred by requiring the defendant to demonstrate that his is the only plausible meaning of the challenged remarks.
As a practical matter, the lesser threshold for ambiguity in statutory construction is inappropriate because that question serves a different function than our inquiry in the present case. “When presented with a question of statutory construction, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Desrosiers v. Diageo North America, Inc., 314 Conn. 773, 782, 105 A.3d 103 (2014). Moreover, a rule for determining whether statutory text is ambiguous is simply intended to resolve the threshold question of whether it is appropriate to resort to extratextual sources to ascertain the statute's intended meaning. See General Statutes § 1–2z; State v. Johnson, supra, 301 Conn. at 650, 26 A.3d 59. By contrast, in considering a claim of improper argument to the jury, we are not concerned with what the prosecutor intended to say, but rather the effect of those remarks on the manner in which the jury decides the case. See State v. Paul B., 315 Conn. 19, 36, 105 A.3d 130 (2014) (“[t]he fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial [impropriety]” [internal quotation marks omitted] ). Indeed, it is because rules of statutory construction are intended to address a fundamentally different concern than the one before us that they yield a result that is inconsistent with the proper burden of proof in this case.
The majority's reliance on a statement by the United States Supreme Court regarding ambiguity in prosecution argument, which previously has been cited by this court, does not support the majority's approach. When considering a claimed violation of due process due to improper prosecution argument, the United States Supreme Court observed: “The consistent and repeated misrepresentation of a dramatic exhibit in evidence may profoundly impress a jury and may have a significant impact on the jury's deliberations. Isolated passages of a prosecutor's argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions. Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” (Emphasis added; internal quotation marks omitted.) Donnelly v. DeChristoforo, 416 U.S. 637, 646–47, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The majority relies on the emphasized language to conclude that no impropriety will occur if a statement is subject to more than one interpretation, one of which is not improper. Donnelly does not stand for such a proposition. Rather, Donnelly made clear that the comment's ambiguity was relevant to determining whether the comment would have deprived the defendant of a fair trial, not whether the comment was improper. See id., at 647–48, 94 S.Ct. 1868 (“[t]he result reached by the [United States] Court of Appeals [for the First Circuit] in this case leaves virtually meaningless the distinction between ordinary trial error of a prosecutor and that sort of egregious misconduct held ... to amount to a denial of constitutional due process” [citation omitted] ); see also id., at 645, 94 S.Ct. 1868 (“[T]he prosecutor's remark here, admittedly an ambiguous one, was but one moment in an extended trial and was followed by specific disapproving instructions. Although the process of constitutional line drawing in this regard is necessarily imprecise, we simply do not believe that this incident made [the] respondent's trial so fundamentally unfair as to deny him due process.”); id., at 648 n. 23, 94 S.Ct. 1868 (“We do not, by this decision, in any way condone prosecutorial misconduct, and we believe that trial courts, by admonition and instruction, and appellate courts, by proper exercise of their supervisory power, will continue to discourage it. We only say that, in the circumstances of the case, no prejudice amounting to a denial of constitutional due process was shown.”). The court focused on the due process issue even though the defendant's interpretation, while plausible, had been viewed by lower courts as speculative and illogical. See id., at 643–45, 94 S.Ct. 1868. Federal courts have since typically relied on Donnelly in making a determination of whether ambiguous prosecution argument deprived the defendant of a fair trial. See, e.g., Littlejohn v. Trammell, 704 F.3d 817, 837–38 (10th Cir.2013); United States v. Nicolo, 421 Fed.Appx. 57, 62 (2d Cir.), cert. denied, ––– U.S. ––––, 132 S.Ct. 338, 181 L.Ed.2d 212 (2011); Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2093, 179 L.Ed.2d 890 (2011); United States v. Two Elk, 536 F.3d 890, 907 (8th Cir.2008); but see United States v. Stinefast, 724 F.3d 925, 930 (7th Cir.2013) “[g]iven that the comments at issue are ambiguous at best, we are not inclined to find that the prosecutor's statement was clearly improper”); United States v. Rollness, 320 Fed.Appx. 797, 798 (9th Cir.) (“[t]he first [challenged] statement is ambiguous when considered in context, and therefore does not rise to the level of misconduct”), cert. denied, 558 U.S. 956, 130 S.Ct. 445, 175 L.Ed.2d 287 (2009).
Although this court has cited Donnelly in connection with a determination of whether any impropriety occurred, we have relied on it to reject a damaging interpretation that was not reasonably likely to be adopted by the jury. See State v. Ciullo, 314 Conn. 28, 48, 100 A.3d 779 (2014) (concluding that prosecutor's isolated comment, in context, would not have been reasonably construed as denigrating defense counsel); State v. Warholic, 278 Conn. 354, 367–68, 897 A.2d 569 (2006) (concluding that prosecutor's statement was argument for reasonable inference that jury could have drawn from evidence adduced at trial, rather than statement of prosecutor's personal opinion about defendant's guilt, because “[w]hen the statement is read in context, the prosecutor's assertion was based on the evidence regarding the behavioral patterns of sexually abused children and [the complainant's] own testimony of the sexual assaults”); State v. Reynolds, 264 Conn. 1, 186 and n. 166, 836 A.2d 224 (2003) (concluding that, “[a]lthough we acknowledge that the argument of the state's attorney on this point was not a model of clarity, we are not persuaded that the jury was likely to have understood it as the defendant contends”), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004); State v. Haase, 243 Conn. 324, 335–36, 702 A.2d 1187 (1997) (concluding that defendant's interpretation was not one that jury naturally and necessarily would have adopted because it was speculative and lacking context, whereas state's proper purpose was “apparent” and made clear by assistant state's attorney's prompt response to defendant's objection), cert. denied, 523 U.S. 1111, 118 S.Ct. 1685, 140 L.Ed.2d 822 (1998); State v. Marra, 222 Conn. 506, 533–35, 610 A.2d 1113 (1992) (This court concluded that the challenged statements “plainly” concerned a matter different than the defendant's failure to testify, and that, “[a]lthough it is possible that the jury drew [an improper] conclusion, such a strained interpretation of the state's argument by the jury would be neither necessary nor natural.... We believe the challenged remarks on rebuttal could only be reasonably interpreted as commentary by the prosecutor on the overall quality of the defendant's evidence and not as calling specific attention to the failure of the accused to testify.” [Citations omitted; internal quotation marks omitted.] ); State v. Negron, 221 Conn. 315, 325, 603 A.2d 1138 (1992) (This court concluded “that the prosecutor's remarks would reasonably have been interpreted by the jury, not as a comment on the defendant's failure to testify, but rather to have been an observation that the defendant, who knew what had happened, had informed three others that he had shot someone ... that the three in turn had testified as to what they had been told, and that the jury, therefore, had for its consideration the defendant's own account of what had transpired. That, indeed, appears to be the more cogent construction to be attributed to the prosecutor's argument.”). Thus, Donnelly does not support the majority's approach in the present case.
To address the specific concern of whether the prosecutor improperly has commented on the defendant's failure to testify versus whether the prosecutor has properly and reasonably commented on the defendant's failure to rebut the state's evidence, courts have adopted the following standard: “In determining whether a prosecutor's comments have encroached upon a defendant's right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” (Internal quotation marks omitted.) State v. Ruffin, 316 Conn. 20, 29, 110 A.3d 1225 (2015). The “naturally and necessarily” standard has been limited to this particular concern and not extended to other alleged impropriety in argument. See, e.g., State v. Grant, 286 Conn. 499, 537–47, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008); State v. Rowe, 279 Conn. 139, 144–61, 900 A.2d 1276 (2006); State v. Satchwell, 244 Conn. 547, 563–72, 710 A.2d 1348 (1998); State v. Crump, 145 Conn.App. 749, 754–61, 75 A.3d 758, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013); State v. Johnson, 107 Conn.App. 188, 199–202, 944 A.2d 416, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008); State v. Palmer, 78 Conn.App. 418, 423–28, 826 A.2d 1253, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003).
The question, therefore, is what is the proper approach when a prosecutor's remarks are susceptible to more than one interpretation, one of which is improper. For the reasons previously stated, the inquiry must focus on the jury's perception of the remarks and not the prosecutor's intention in making them. Moreover, the interpretation must be more than simply plausible, but one that the jury is reasonably likely to adopt. At the two polar extremes—where the jury clearly is unlikely or likely to adopt one interpretation—the issue of impropriety is readily determined. In between these polar extremes are cases in which there is more than one reasonable interpretation. In such cases, it is reasonably possible that the jury understood the remark to encourage it to decide the case on an improper basis. Although the defendant bears the burden of proving that it is more likely than not that an impropriety occurred, for the reasons that follow, I would assume impropriety in such cases and address the effect of the ambiguity in the second step in our prosecutorial impropriety analysis. See State v. Taft, 306 Conn. 749, 762, 51 A.3d 988 (2012) (two step analytical process considers “[1] whether [impropriety] occurred in the first instance; and [2] whether that [impropriety] deprived a defendant of his due process right to a fair trial” [internal quotation marks omitted] ). By deeming remarks proper that reasonably could be understood by the jury as advancing an improper argument, we would encourage prosecutors to couch argument in ambiguous language to avoid admonishment, without reducing the risk that the jury may have interpreted the comments as directing it to decide the case on an improper basis. Because “[t]he prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates”; (internal quotation marks omitted) State v. Payne, 260 Conn. 446, 452, 797 A.2d 1088 (2002); we should deem argument improper when it is crafted in terms that are readily susceptible to misinterpretation for an improper purpose. Indeed, when argument is equally likely to be interpreted in a damaging way as a proper way, the defendant may not have met his burden of proof, but such argument should not be characterized as proper. By deeming such ambiguous comments improper, we put the prosecutor on notice that a pattern of such obfuscation, even if insufficient to give rise to grounds for reversal on due process grounds in a particular case, could constitute grounds for reversal under the exercise of our supervisory authority in the future. See, e.g., id., at 450–52, 797 A.2d 1088.
In considering whether a due process violation has occurred, it makes sense to consider the nature of the ambiguity (plausibly, reasonably, or likely to be understood in damaging way) in connection with factors addressing the frequency and severity of the impropriety, as well as the effect of curative instructions. See, e.g., Muhammad v. McNeil, 352 Fed.Appx. 371, 375–76 (11th Cir.2009) (stating in connection with second step in prosecutorial impropriety analysis: “[i]n determining whether arguments are sufficiently egregious to result in the denial of due process, we consider factors including: [1] whether the remarks were isolated, ambiguous, or unintentional; [2] whether there was a contemporaneous objection by defense counsel; [3] the trial court's instructions; and [4] the weight of aggravating and mitigating factors” [emphasis added; internal quotation marks omitted] ), cert. denied, 559 U.S. 1052, 130 S.Ct. 2350, 176 L.Ed.2d 568 (2010); United States v. Caballero, 277 F.3d 1235, 1245 (10th Cir.2002) (concluding in due process analysis that “we find it unlikely that the prosecutor's single, ambiguous remark substantially influenced the jury in light of the overwhelming evidence presented against the [defendants]”). Under such a framework, a determination of whether the ambiguous remarks were frequent would properly focus on the likely effect of the remarks instead of the prosecutor's intention in making them. Moreover, curative instructions would be relevant to whether any ambiguity was sufficiently dispelled. Although analyzing ambiguity under either step of our analysis likely would yield the same result, because the defendant still must prove that it is more likely than not that the jury adopted the adverse interpretation, I am persuaded that analyzing all but the most obvious cases under the second step is most faithful to vindicating due process concerns.
In the present case, however, Pepper's remarks clearly were improper, but did not deprive the defendant of a fair trial. Accordingly, I join the majority only insofar as it reverses the judgment of the Appellate Court reversing the defendant's judgment of conviction.
I respectfully concur.