Summary
In Medrano, we found Gaines and Brutus to be distinguishable because the trial court did not "explicitly [state] that [Medrano's] interest in the case gave him a motivation to testify falsely."
Summary of this case from State v. DiazOpinion
No. 18895.
2013-05-21
STATE of Connecticut v. Rafael MEDRANO.
James B. Streeto, assistant public defender, for the appellant (defendant). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anne Mahoney, senior assistant state's attorney, for the appellee (state).
James B. Streeto, assistant public defender, for the appellant (defendant). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anne Mahoney, senior assistant state's attorney, for the appellee (state).
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and VERTEFEUILLE, Js.
EVELEIGH, J.
In this certified appeal, the defendant, Rafael Medrano, appeals from the judgment of the Appellate Court, which affirmed the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes §§ 53a–55 (a)(1) and 53a–8 and carrying a dangerous weapon in violation of General Statutes § 53–206. State v. Medrano, 131 Conn.App. 528, 530, 27 A.3d 52 (2011). On appeal, the defendant claims that: (1) the prosecutor committed prosecutorial improprieties that deprived him of a fair trial; and (2) the trial court's instruction regarding the defendant's interest in the outcome of the trial in relation to the jury's credibility assessment of his testimony deprived him of his right to a fair trial. Upon a consideration of the entire record, we conclude that neither the instances of prosecutorial impropriety identified by the defendant, nor the trial court's instruction to the jury, affected the fairness of the trial or prejudiced the defendant. Accordingly, we affirm the judgment of the Appellate Court. Nevertheless, in the exercise of our supervisory authority over the administration of justice, we direct our trial courts in the future to refrain from instructing jurors, when a defendant testifies, that they may specifically consider his interest in the outcome of the case and the importance to him of the outcome of the trial.
We note that certain technical changes, not relevant to this appeal, were made to § 53–206 in 2010. See Public Acts 2010, No. 10–32, § 148.
The opinion of the Appellate Court appropriately sets forth the relevant facts and procedural history, which the jury reasonably could have found. “On June 22, 2007, the defendant attended a high school graduation party at a multifamily house on New Britain Avenue in Hartford hosted by Catherine Perez. Accompanying the defendant to the party were several friends or acquaintances, including his roommate, Angelley Torres, his friend, Omar Sosa, and Edwin Candelario. The celebration devolved into turmoil when a dispute erupted amongst the partygoers. This occurred when Torres began arguing with another guest at the party after that guest pushed him. That verbal altercation escalated when Joel Quinones began yelling at and aggressively confronting Torres. In response to this display of aggression, Torres pushed Quinones. The defendant, who was standing nearby, tried in vain to stop the disagreement from escalating further. Quinones however, drew a knife, cut the defendant on the right arm, then chased Torres out of the house and into the front yard where he stabbed Torres in the back.
“After witnessing Quinones stab Torres, the defendant pushed Quinones away from Torres. At this point a female partygoer hit the defendant in the shoulder with a stick. Quinones then threw his knife at the defendant, who was successfully able to dodge the oncoming weapon. Agitated by the blow to his shoulder with a stick and the knife thrown at him, the defendant chased the fleeing Quinones into the street. Quinones tripped on the corner of the sidewalk and fell to the ground as the defendant gave chase. The defendant came upon Quinones, and they struggled with each other briefly. The melee ended when the defendant stabbed Quinones twice in the side with a pocketknife he had been carrying. The blade of the pocketknife was less than four inches long and was carried habitually by the defendant in order to perform his duties at the automotive garage at which he was employed. An associate medical examiner testified at trial that these stab wounds were the cause of Quinones' death.
“After he stabbed Quinones, the defendant proceeded back up the street toward the house party where his car was parked. The defendant then fled the scene with Sosa and Torres and convened in the basement at Sosa's home. There, the defendant used alcohol to clean blood off his knife. He cleaned Torres' knife, which also was bloodstained. The defendant and Torres then placed the knives in the trunk of the defendant's car under a spare tire. During that time, the defendant telephoned his girlfriend, Mary DeJesus. He told her: ‘I stabbed a boy. Don't say nothing. I'll talk to you later....’
“The defendant was subsequently arrested and charged with the crime of murder, in count one, and carrying a dangerous weapon, in count two. After a full hearing, the case was committed to the jury, which returned a verdict of not guilty on count one but guilty of the lesser included offense of intentional manslaughter in the first degree and guilty on count two. The court rendered judgment in accordance with this finding, sentencing the defendantto incarceration for twenty years for intentional manslaughter in the first degree and for three consecutive years thereafter on the count of carrying a dangerous weapon.” Id., at 531–32, 27 A.3d 52. The defendant appealed to the Appellate Court.
On appeal to the Appellate Court, the defendant claimed that: his conviction of both manslaughter in the first degree and carrying a dangerous weapon violated the fifth amendment prohibition against double jeopardy, and that the prosecutor committed prosecutorial impropriety that deprived him of his right to a fair trial. Id., at 530, 27 A.3d 52. The Appellate Court concluded that the defendant's conviction of manslaughter in the first degree and carrying a dangerous weapon does not violate the constitutional protection against double jeopardy and that the defendant was not deprived of a fair trial as a result of prosecutorial impropriety. Id., at 530–31, 27 A.3d 52. The Appellate Court did not reach two additional claims made by the defendant in his appellate brief regarding the trial court's jury instruction, namely, that “the [trial] court erred in its instructions on the credibility of witnesses by unduly emphasizing his interest in the outcome of the trial” and “that the [trial] court erred in its instructions to the jury on the state's burden of proof beyond a reasonable doubt.” Id., at 530 n. 1, 27 A.3d 52. Particularly with respect to his objection to the “defendant's interest” charge, the defendant acknowledged that these additional claims were governed by precedent from this court, including State v. Williams, 220 Conn. 385, 396–97, 599 A.2d 1053 (1991), in which this court previously had deemed such an instruction not to be per se improper. This appeal followed. Additional facts will be set forth as necessary.
We granted the defendant's petition for certification to appeal, limited to the following issues: “1. Did the Appellate Court properly determine that the defendant was not deprived of his due process right to a fair trial as a result of prosecutorial improprieties?
“2. Was the defendant deprived of his due process right to a fair trial by the trial court's ‘defendant's interest’ charge to the jury?
“3. If the answer to question two is in the negative, should the court overrule the holding in State v. Williams, [supra, 220 Conn. at 397, 599 A.2d 1053], as it relates to the ‘defendant's interest’ charge to the jury?” State v. Medrano, 303 Conn. 912, 32 A.3d 965 (2011). Because, in the exercise of our supervisory authority over the administration of justice, we direct our trial courts in the future to refrain from using “the defendant's interest” instruction, we do not reach the third certified question.
I
The defendant first claims that the Appellate Court improperly concluded that the defendant was not deprived of a fair trial as the result of prosecutorial impropriety and, therefore, improperly affirmed the judgment of the trial court. Specifically, the defendant asserts that the prosecutor engaged in vitriolic and improper questioning of the defendant and that, during closing argument, she engaged in a vicious attack on the defendant, argued facts not in evidence, appealed to the jury's emotions and denigrated the defendant's credibility. The defendant claims that, despite finding that the prosecutor engaged in improprieties, the Appellate Court improperly concluded that these actions by the prosecutor did not deprive him of a fair trial. In response, the state asserts that only one of the challenged acts rises to the level of prosecutorial impropriety, and that, even if all of the remarks raised by the defendant were improper, the Appellate Court properly concluded that the defendant failed to meet his burden of establishing that they were so egregiousas to deprive him of a fair trial. We agree with the state that the Appellate Court properly concluded that the defendant failed to meet his burden of establishing that the remarks were so egregious as to deprive him of a fair trial.
Before we address the merits of the defendant's claims, we set forth the standard of review and the law governing claims of prosecutorial impropriety. “In determining whether the defendant was denied a fair trial we must view the prosecutor's comments in the context of the entire trial.” (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 538, 529 A.2d 653 (1987).
“ ‘[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (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.’ ... State v. Angel T., 292 Conn. 262, 275, 973 A.2d 1207 (2009). ‘[W]hen a defendantraises 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 ... that the remarks were improper....’ ” State v. Taft, 306 Conn. 749, 761–62, 51 A.3d 988 (2012).
In the present case, the defendant claims the prosecutorial impropriety occurred during cross-examination of the defendant and closing argument. “Prosecutorial [impropriety] ... may occur in the course of cross-examination of witnesses ... and may be so clearly inflammatory as to be incapable of correction by action of the court.... In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury's verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal.” (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 164, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).
“As we previously have recognized, prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... When making closing arguments to the jury, [however] [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.... Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Moreover, [i]t does not follow ... that every use of rhetorical language or device [by the prosecutor] is improper.... The occasional use of rhetorical devices is simply fair argument....
“Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.... By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused [is] guilty, he should [nonetheless] be convictedonly after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha [s] no right to consider.” (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 428–29, 902 A.2d 636 (2006).
“Finally, we note that ‘the defendant's failure to object at trial to each of the occurrences that he now raises as instances of prosecutorial impropriety, though relevant to our inquiry, is not fatal to review of his claims.... This does not mean, however, that the absence of an objection at trial does not play a significant role in the determination of whether the challenged statements were, in fact, improper.... To the contrary, we continue to adhere to the well established maxim that defense counsel's failure to object to the prosecutor's argument when it was made suggests that defense counsel did not believe that it was [improper] in light of the record of the case at the time.... With this maxim in mind, we proceed with our review of the defendant's claim[s].’ ... State v. Otto, 305 Conn. 51, 75 n. 18, 43 A.3d 629 (2012).” State v. Taft, supra, 306 Conn. at 762, 51 A.3d 988.
On appeal to the Appellate Court, the defendant claimed “that at least nine of the prosecutor's statements or questions—variations of which were repeated more than once—were improper.” State v. Medrano, supra, 131 Conn.App. at 540, 27 A.3d 52. The Appellate Court divided the defendant's claim of prosecutorial impropriety into three categories: “the prosecutor's statements that might be improper because they (1) were based on unreasonable inferences from the facts of the case, (2) unreasonably appeal to the emotions, passions and prejudices of the jurors or (3) express the prosecutor's opinion that the defendant was not credible.” Id. We examine each of these categories separately.
A
The defendant first claims that the prosecutor made several statements that were based on unreasonable inferences from the facts of the case. In examining this claim, we are mindful that “as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case.” (Internal quotation marks omitted.) State v. Taft, supra, 306 Conn. at 766, 51 A.3d 988.
The defendant points to the fact that “the prosecutor twice during cross-examination of the defendant accused him of ‘bragging about stabbing [the victim]....’ ” State v. Medrano, supra, 131 Conn.App. at 543, 27 A.3d 52. After a thorough examination, we find nothing in the record that supports this statement by the prosecutor. The defendant also points out that the prosecutor improperly “suggested [three times] that the reason why the defendant carried a pocketknife was in case he got into ‘fights' or had ‘to settle some scores like [he] did with [the victim]....’ ” Id. This statement by the prosecutor is also not supported by the record. Instead, the evidence presented at trial demonstrated that the defendant carried the knife for his work in an automotive center where he occasionally had to use it to cut carpets. Nothing in the evidence presented at trial made it reasonableto infer that the defendant carried the knife to settle scores, or otherwise fight. The defendant also claims that the prosecutor improperly “insinuated that the defendant had started the fight that led to the victim's death when she stated on cross-examination, ‘and your friends walked in and started pushing those kids around and started a fight, right?’ A variation on this last comment was repeated by the prosecutor three times.” Id. A review of the evidence admitted at trial indicates that there was no support for this statement by the prosecutor. Instead, both the defendant and Sosa testified that the events that led to the killing of the victim began when another partygoer pushed Torres—not because the defendant and his friends “started pushing ... kids around....” Accordingly, after a thorough examination of the record, we agree with the Appellate Court that these statements were improper because “they were not based on reasonable inferences from the facts in the record.” Id., at 545, 27 A.3d 52.
The defendant also claims that, while he was testifying, the prosecutor improperly remarked during cross-examination that the defendant stabbed the victim “over and over again.” We agree with the Appellate Court that, “[t]estimony from multiple sources, including Susan Williams, an associate medical examiner, is clear that the defendant stabbed the victim at least twice. This statement is therefore not improper.” Id.
B
The defendant additionally claims that statements made by the prosecutor were improper because they unreasonably appealed to the emotions, passions and prejudices of the jurors. “[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors.... [S]uch appeals should be avoided because they have the effect of diverting the [jurors'] attention from their duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Darryl W., 303 Conn. 353, 376, 33 A.3d 239 (2012).
In the present case, the defendant claims that the prosecutor's statement during closing argument to the jury, describing the defendant as “hunting down his prey ... and stabbing him to death” was improper because it unreasonably appealed to the emotions of the jurors. First, it is important to note that the second clause of the statement can be inferred from the evidence. Therefore, we must examine whether the first clause was so egregious as to appeal to the emotions of the jurors.
In State v. Williams, supra, 204 Conn. at 545–46, 529 A.2d 653, this court recognized that “[a]lthough a state's attorney may argue that the evidence proves the defendant guilty, he may not stigmatize the defendant by the use of epithets which characterize him as guilty before an adjudication of guilt.” In Williams, this court concluded that the prosecutor engaged in prosecutorial impropriety by repeatedly engaging “in character assassination and personal attacks on both the defendant and his key witness....” Id., at 546, 529 A.2d 653. Specifically, “[d]uring cross-examination of the defendant, the [prosecutor] repeatedly and directly called the defendant a ‘coward,’ and characterized him as ‘hiding like a dog’ when the police discovered him lying in the grass. In his closing argument, the [prosecutor], at various times, referred to the defendant as a ‘child-beater,’ ‘baby-beater’ and ‘infant-thrasher.’ ... Additionally, he referred to the defendant as a ‘liar,’ ‘drunken drug-user, convicted felon, child beater,’ ‘stupid,’ ‘savage child beater,’ ‘drunken bum,’ ‘evil man,’ and ‘a drunk who uses cocaine and smokes marijuana and beats children.’ ” (Citation omitted.) Id., at 546–47, 529 A.2d 653. In concluding that the prosecutor's statements in Williams were improper, this court relied on the fact that they were repeated numerous times. Id., at 547, 529 A.2d 653. In the present case, the use of the phrase “hunting down his prey” once during closing argument does not rise to the level of “continuous use of invective [that] would have the improper effect of appealing to the emotions and prejudices of the jury.” Id.
In its brief to this court, the state concedes that the prosecutor's statement that the defendant acted as the victim's “judge, jury and executioner” was improper. Although it does not do so in its brief to this court, at oral argument in the Appellate Court, the state also conceded the impropriety of the following statement: “Do you really believe that after [the defendant] stabbed the victim this many times he thought [the victim] was fine? Because if you do, I have a bog in Ireland I'd like to sell to you.” (Internal quotation marks omitted.) State v. Medrano, supra, 131 Conn.App. at 547, 27 A.3d 52. Accordingly, we consider those statements improper without analysis.
C
The defendant also claims that the prosecutor improperly expressed her personal opinion on the defendant's credibility in her closing argument. Specifically, the prosecutor stated the following: “Why should you not believe this defendant? Why not just take his word that he intended to seriously physically injure him and, in fact, he died, but he didn't intend to kill him? Well, quite frankly, because he's not a credible person, is he? He's already told you that he'll lie when he wants to get something. He lied on that job application. He's a convicted felon.” The prosecutor continued: “He doesn't want you to believe that he intended to kill him. He wants you to believe that when he left [the victim] after repeatedly stabbing him, [the victim] was fine. That's the story he's telling you now. You have to find it beyond a reasonable doubt. The trial is a search for truth, and the physical evidence and the photographs from the medical examiner's autopsy are what you should rely on here. You shouldn't rely on the defendant's story because, as you know, he's proven himself not to be a credible person.”
A majority of the Appellate Court concluded that the foregoing was improper because she was expressing her personal opinion regarding the defendant's credibility. State v. Medrano, supra, 131 Conn.App. at 550, 27 A.3d 52. We disagree. We are not persuaded that any of the foregoing remarks are an improper expression of the prosecutor's opinion of the defendant's credibility. To the contrary, the prosecutor's remarks clearly were intended to appeal to the jurors' common sense and to elicit a particular conclusion about the veracity of the defendant's testimony by inviting the jurors to draw reasonable inferences from the evidence presented to them. It is well established that a prosecutor may argue about the credibility of witnesses, as long as her assertions are based on evidence presented at trial and reasonable inferences that jurorsmight draw therefrom. See, e.g., State v. Fauci, 282 Conn. 23, 36, 917 A.2d 978 (2007). Moreover, “[i]n deciding cases ... [j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion.... Therefore, it is entirely proper for counsel to appeal to [the jurors'] common sense in closing remarks.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 588–89 n. 17, 849 A.2d 626 (2004).
Chief Judge DiPentima authored a concurring opinion in which she concluded that “[t]he prosecutor's comments during closing argument regarding the credibility of the defendant constituted comment on the evidence and argument regarding inferences that the jury could draw therefrom. I conclude, therefore, that the prosecutor's comments regarding the credibility of the defendant, as set forth in ... the majority opinion, were not improper.” State v. Medrano, supra, 131 Conn.App. at 558, 27 A.3d 52.
In the present case, the prosecutor's comments clearly were referring to the fact that the defendant testified that he previously had been convicted of larceny in the second degree in February, 2001, but had failed to disclose this felony conviction on a subsequent employment application. The prosecutor's remarks suggested that the jurors should rely on their common sense and infer from this fact that the defendant was not credible. We conclude that such a remark is proper.
Similarly, the defendant challenges the prosecutor's comment during closing argument “[d]on't let him pull the wool over your eyes.” We conclude that this statement is a reasonable inference from the evidence. Specifically, the prosecutor made this statement in the context of relaying the facts as follows: “This is a defendant who went out of his way to avoid detection. He fled from the scene. He told his girlfriend not to tell anyone, to talk to them about what had happened. He washed off the knife and he hid it under the wheel of the trunk of his car. Finally, when he's caught, he goes into the police station, tries to shift the blame to the victim and minimize his role in this and minimize what he did. Don't let him pull the wool over your eyes. Find him guilty of the murder and find him guilty of the carrying a dangerous weapon [charge].” On the basis of the foregoing, we agree with the Appellate Court and conclude that the prosecutor's statement “[d]on't let him pull the wool over your eyes” was not improper, but was a reasonable inference based on the facts in evidence detailing what the defendant did after the incident.
Similarly, the defendant also challenges the following statement: “He doesn't say anything about having been stabbed by the victim in his prior statement. Isn't that because that never happened? It's something he needed to add to the story to give himself the justification for you people as to why he was so belligerent in hunting down his prey, [the victim], and stabbing him to death. If he had honestly been stabbed by [the victim] that night, why on earth would he forget to tell the police that as he's telling them everything else? He's adding to his story. That's why he's not to be believed.” This court has previously concluded that “[i]t is not improper for a prosecutor to remark on the motives that a witness may have to lie.” State v. Thompson, 266 Conn. 440, 466, 832 A.2d 626 (2003). In the present case, we conclude that this statement by the prosecutor is merely a comment on the defendant's motive to lie about being stabbed by the victim. Accordingly, we agree with the Appellate Court that this statement was not improper.
D
“[O]ur determination of whether any improper conduct by the state's attorney violated the defendant's fair trial rights is predicated on the factors set forth in State v. Williams, supra, 204 Conn. at 540, 529 A.2d 653, with due consideration of whether that misconduct was objected to at trial.” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 362, 897 A.2d 569 (2006). These factorsinclude: “the extent to which the [impropriety] was invited by defense conduct or argument ... the severity of the [impropriety] ... the frequency of the [impropriety] ... the centrality of the [impropriety] to the critical issues in the case ... the strength of the curative measures adopted ... and the strength of the state's case.” (Internal quotation marks omitted.) State v. Fauci, supra, 282 Conn. at 34, 917 A.2d 978.
We recently clarified that “when 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).
Having determined that several of the prosecutor's statements were improper, we now turn to whether the defendant has proven that the improprieties, cumulatively, “so infected the trial with unfairness as to make the conviction[s] a denial of due process.” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 723, 793 A.2d 226 (2002). We conclude that he has not.
The state does not claim, and we do not find any basis for concluding, that the defendant invited any of the improper comments made by the prosecutor. With respect to the frequency and severity of the impropriety, it is significant to note that the statements that we find improper occurred a total of ten times in the midst of a five day trial with hundreds of pages of transcript. We also find it important that not one of the improprieties was so glaring that it was objected to at trial by defense counsel. When no objection is raised at trial, we infer that defense counsel did not regard the remarks as seriously prejudicial at the time the statements were made. See State v. Stevenson, supra, 269 Conn. at 575, 849 A.2d 626 (“[T]he determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor's improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant's right to a fair trial.” [Internal quotation marks omitted.] ).
The defendant asserts that there were no curative measures for these prosecutorial improprieties. This court has repeatedly recognized that, “when a defendant, as here, fails to object at trial, he bears much of the responsibility for the fact that these claimed improprieties went uncured, especially because defense counsel's failure to object to the prosecutor's argument ... when [they were] made suggests that defense counsel did not believe that [they were] unfair in light of the record of the case at the time.... Moreover ... defense counsel may elect not to object to arguments ... that he or she deems marginally objectionable for tactical reasons, namely, because he or she does not want to draw the jury's attention to [them] or because he or she wants to later refute that argument.... The same principles hold true in regard to requests for special instructions. The failure by the defendant to request specific curative instructions frequently indicates on appellate review that the challenged instruction did not deprive the defendant of a fair trial.” (Internal quotation marks omitted.) State v. Tomas D., 296 Conn. 476, 515–16, 995 A.2d 583 (2010), overruled in part on other grounds by State v. Payne, supra, 303 Conn. at 562–64, 34 A.3d 370.
With respect to the sixth factor, the strength of the state's case, our review of the record indicates that the state had a strong case against the defendant. There was no dispute that the defendant killed the victim with a pocketknife he was carrying. The only issue with regard to the first degree manslaughter conviction was intent—namely, whether the defendant had the requisite intent to be convicted of murder, first degree manslaughteror some lesser offense. Furthermore, the prosecutorial improprieties were not central to the critical issue in this case—intent. Indeed, none of the prosecutorial improprieties had any relation to the defendant's intent. The defendant claims that the prosecutorial improprieties affected the jury's view of his credibility. We agree with the Appellate Court, however, that “it is precisely because the jury believed the defendant's repeated claims that he only meant to cut the victim that he was convicted of first degree manslaughter instead of murder.” (Emphasis in original.) State v. Medrano, supra, 131 Conn.App. at 556, 27 A.3d 52.
Accordingly, based on our review of the factors set forth in State v. Williams, supra, 204 Conn. at 540, 529 A.2d 653, and the record in the present case, we conclude that the Appellate Court properly concluded that the prosecutorial improprieties did not deprive the defendant of his right to a fair trial.
II
The defendant also claims that the trial court improperly instructed the jury on the credibility of witnesses by indicating that the defendant's interest in the outcome of the case could be considered in evaluating his testimony. The defendant claims that this instruction undermined the presumption of innocence and his rights under the federal and state constitutions to a fair trial and to testify in his own defense. We disagree.
Because the defendant did not preserve this issue in the trial court by raising an objection to the relevant jury instructions, he seeks to prevail pursuant to the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). A defendant can prevail on an unpreserved constitutional claim under Golding “only if all of 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 clearly exists and clearly 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.” (Emphasis in original.) Id., at 239–40, 567 A.2d 823. “The first two [prongs of Golding ] involve a determination of whether the claim is reviewable; the second two ... involve a determination of whether the defendant may prevail.” State v. George B., 258 Conn. 779, 784, 785 A.2d 573 (2001). We conclude that the record is adequate to review the defendant's claim and that the claim, which alleges an improper instruction relating to the defendant's right to testify, is of constitutional magnitude. See State v. DeJesus, 260 Conn. 466, 472–73, 797 A.2d 1101 (2002).
We review the defendant's claim of instructional impropriety pursuant to the following standard of review. “The 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.... Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Apodaca, 303 Conn. 378, 390–91, 33 A.3d 224 (2012).
In the present case, the trial court instructed the jury as follows: “You may believe all, none or any part of any witness' testimony. In making that decision, you may take into account a number of factors including the following: (1) Was the witness able to see or hear or know the things about which that witness testified? (2) How well was the witness able to recall and describe those things? (3) What was the witness' manner while testifying? (4) Did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case? (5) How reasonable was the witness' testimony considered in the light of all the evidence in the case? And (6) was the witness' testimony contradicted by what that witness has said or done at another time or by the testimony of other witnesses or by other evidence?”
The trial court also instructed the jury as follows: “The accused in this case took the [witness] stand and testified. In weighing the testimony of an accused person, you should apply the same principles by which the testimony of other witnesses is tested. And that necessarily involves a consideration of [the defendant's] interest in the outcome of the case. You may consider the importance to him of the outcome of the trial. An accused person, having taken the witness stand, stands before you, then, just like any other witness and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including his interest in the verdict, which you are about to render.”
The defendant claims that the trial court's instructions regarding the defendant's interest in the case were improper because it singled out the defendant by stressing his interest in the outcome of the case. The defendant asserts that it was particularly harmful in the present case because he was the most important defense witness and his explanation of what happened on the night in question was the crux of his defense. Therefore, the defendant claims that these instructions deprived him of his defense. Furthermore, the defendant claims that the trial court's instruction is inconsistent with the requirement that instructions on the defendant's credibility must be balanced and fair. In response, the state asserts that the trial court's instruction regarding the defendant's interest in the outcome of the case did not deprive the defendant of his due process right to a fair trial. Specifically, the state asserts that the defendant's claim is controlled by State v. Williams, supra, 220 Conn. at 396–97, 599 A.2d 1053, in which this court rejected a claim that a similar charge violated due process because it unduly emphasized the defendant's interest in the outcome of the case. Furthermore, the state claims that, even if the instruction was improper, any error was harmless because the record demonstrates that the jury credited the defendant's testimony and believed his account of the incident. Namely, the fact that the jury convicted the defendant of first degreemanslaughter instead of murder demonstrates that the jury believed the defendant's version of events—that he only meant to cut the victim and not kill him. We agree with the state.
In State v. Williams, supra, 220 Conn. at 396–97, 599 A.2d 1053, this court considered a claim by a defendant that his right to due process was violated because the trial court unduly emphasized his interest in the outcome of the case by mentioning it on three separate occasions in the charge to the jury. In examining his claim, this court stated that “[w]e have treated the basic claim that specific mention of the defendant's interest infringes upon his right to a fair trial as falling within the claimed deprivation of a fundamental constitutional right ... [and] [w]e must, therefore, examine the nuances of language, belatedly relied upon by the defendant, only for the purpose of determining whether they are significant enough to have affected the fairness of his trial.” (Internal quotation marks omitted.) Id. In Williams, the defendant claimed “that the trial court's three references to the defendant's interest in the outcome of the case were not [evenhanded] in referring to the defendant's interest as compared with that of other witnesses.” Id., at 397, 599 A.2d 1053. This court disagreed, stating: “This simply is not so. In each instance the trial court prefaced its remarks concerning the defendant's interest in the outcome with comments such as: (1) ‘[Y]ou should apply the same principles by which the testimony of other witnesses are tested’; (2) the accused ‘is entitled to the same consideration and must have his testimony measured in the same way as any other witness ...’; and (3) ‘you should apply the same test to it as you did with the other witnesses....' The continual emphasis was that the jury was to evaluate the defendant's testimony in the same fashion as the testimony of the other witnesses. We have repeatedly approved the use of similar language and we do not find its use here unduly repetitive or transcending the bounds of evenhandedness.” Id.
Similarly, in the present case, the trial court's charge regarding the defendant's interest in the outcome of the case, explicitly instructed the jury that “[a]n accused person, having taken the witness stand, stands before you, then, just like any other witness and is entitled to the same consideration and must have his testimony measured in the same way as any other witness....” Furthermore, the trial court also instructed the jury that, for all witnesses, the jury should consider, “[d]id the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case?” Accordingly, we conclude that, like the instruction in State v. Williams, supra, 220 Conn. at 396–97, 599 A.2d 1053, the instruction in the present case was not unduly repetitive nor did it transcend the bounds of evenhandedness.
The defendant further claims that State v. Williams, supra, 220 Conn. at 396–97, 599 A.2d 1053, is no longer good law in light of recent decisions by the United States Court of Appeals for the Second Circuit addressing the defendant's interest instruction. Specifically, the defendant asserts that this court should follow the Second Circuit's decisions in United States v. Gaines, 457 F.3d 238 (2d Cir.2006), and United States v. Brutus, 505 F.3d 80 (2d Cir.2007). The defendant asserts that these cases are particularly persuasive because this court's analysis in State v. Williams, supra, at 396–97, 599 A.2d 1053, was based on an analysis of federal constitutional law. We disagree.
In Gaines, the Second Circuit reviewed a defendant's interest instruction that stated as follows: “Obviously, the defendant has a deep personal interest in the result of his prosecution. This interest creates a motive for false testimony and, therefore, the defendants' testimony should be scrutinized and weighed with care.” (Internal quotation marks omitted.) United States v. Gaines, supra, 457 F.3d at 242. The Second Circuit concluded that “[t]he critical defect in a jury instruction that says the defendant has a motive to lie is its assumption that the defendant is guilty.” Id., at 247. In order to “prevent [this] needless threat of dilution of the presumption of innocence, [the court in Gaines ] ... direct [ed] [D]istrict [C]ourts in the circuit not to charge juries that a testifying defendant's interest in the outcome of the case creates a motive to testify falsely.” Id. The Second Circuit further concluded that “[D]istrict [C]ourts should not instruct juries to the effect that a testifying defendant has a deep personal interest in the case. Rather, a [witness'] interest in the outcome of the case ought to be addressed in the court's general charge concerning witness credibility. If the defendant has testified, that charge can easily be modified to tell the jury to evaluate the defendant's testimony in the same way it judges the testimony of other witnesses.” Id., at 249. That court did not, however, “purport to micromanage such charges,” and allowed a trial court to exercise its discretion to use an “an additional free-standing charge on the defendant's testimony [if it was] deemed appropriate....” Id.
The defendant also points to another decision by the Second Circuit addressing the defendant's interest instruction, United States v. Brutus, supra, 505 F.3d at 80. In Brutus, the trial court charged as follows: “A defendant who does testify on her own behalf obviously has a deep personal interest in the outcome of her prosecution. It's fair to say that the interest which a defendant has in the outcome of the case is an interest which is possessed by no other witness ... [a]nd such an interest creates a motive to testify falsely.” (Internal quotation marks omitted.) Id., at 85. The court concluded that “an instruction that the defendant's interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of innocence because it presupposes the defendant's guilt.” Id., at 87. The court clarified that, “with Gaines we established a prophylactic rule that it is error to instruct the jury that a defendant's interest in the outcome of the case creates a motive to testify falsely; it follows that the charge at issue [in Brutus ] was error, the prejudice from which was exacerbated by the [D]istrict [C]ourt's reference to the defendant's ‘deep personal interest.’ ” Id.
The defendant asserts that this court should rely on Gaines and Brutus to overrule this court's conclusion in Williams and conclude that the defendant's interest charge in this case, which we have explained previously herein is substantially similar to the charge in Williams, deprived the defendant of his constitutional right to the presumption of innocence. We disagree. The charge given in the present case, like the charge in Williams, is distinguishable from the charge used in Gaines and Brutus. The charge in Gaines and Brutus explicitly stated that the defendant's interest in the case gave him a motivation to testify falsely. United States v. Brutus, supra, 505 F.3d at 85;United States v. Gaines, supra, 457 F.3d at 242. Indeed, it is this portion of the charge that the Second Circuit relied on to conclude that the charges in Gaines and Brutus were improper. In the present case, like in Williams, the trial court did not instruct the jury that the defendant's interest in the case gave him a motivation to lie. In addition, the charges in Gaines and Brutus singled out the defendant from all other witnesses and were not evenhanded, unlike the charges in Williams and the present case. Therefore, we do not find the Second Circuit's reasoning in Gaines and Brutus to undermine the conclusion this court reached in Williams. Thus, we decline the defendant's invitation to overrule the conclusion this court reached in Williams regarding such instructions.
Moreover, as the state contends, the fact that the defendant was convicted of first degree manslaughter instead of murder demonstrates that the trial court's instruction did not violate his right to due process. Indeed, it is clear that the jury found the defendant to be credible. The defendant testified that he only intended to cut the victim and not kill him. The fact that the jury acquitted the defendant of murder and found him guilty of manslaughter in the first degree demonstrates that the jury believed the defendant's testimony, regardless of the court's instruction regarding his interest in the outcome of the trial.
Nevertheless, it has become apparent to us, after further consideration of the issue, that instructions regarding the defendant's interest in the outcome of a case, when viewed in isolation from the qualifying language concerning evaluating the defendant's credibility in the same manner as the testimony of other witnesses, could give rise to a danger of juror misunderstanding. “It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice.... Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.... Under our supervisory authority, we have adopted rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process.” (Internal quotation marks omitted.) State v. Rose, 305 Conn. 594, 607, 46 A.3d 146 (2012). “We ordinarily invoke our supervisory powers to enunciate a rule that is not constitutionally required but that we think is preferable as a matter of policy.” (Internal quotation marks omitted.) State v. Marquez, 291 Conn. 122, 166, 967 A.2d 56 (2009); see, e.g., State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002) (exercising supervisory authority to prohibit use of jury instruction that “one who uses dangerous weapon on the vital part of another ‘will be deemed to have intended’ the probable result of that act and that from such a circumstance the intent to kill properly may be inferred”); State v. Delvalle, 250 Conn. 466, 475–76, 736 A.2d 125 (1999) (exercising supervisory authority to prohibit use of jury instruction that reasonable doubt is no doubt suggested by “ ‘ingenuity of counsel’ ”); State v. Schiappa, 248 Conn. 132, 168, 175, 728 A.2d 466 (exercising supervisory authority to prohibit use of jury instruction that requirement of proof beyond reasonable doubt is rule designed to “protect the innocent and not the guilty”), cert. denied, 528 U.S. 862, 120 S.Ct. 152, 145 L.Ed.2d 129 (1999). Because of the risk of juror misunderstanding, “[w]e believe that the time has come for us to ensure that the challenged language is not included in any future jury instructions.” (Internal quotation marks omitted.) State v. Aponte, supra, at 522, 790 A.2d 457. Accordingly, in the exercise of our supervisory authority over the administration of justice, we direct our trial courts in the future to refrain from instructing jurors, when a defendant testifies, that they may specifically consider the defendant's interest in the outcome of the case and the importance to him of the outcome of the trial. Instead, we instruct the trial courts to use the general credibilityinstruction to apply to a criminal defendant who testifies. See Connecticut Criminal Jury Instructions § 2.4–7 (4th Ed. 2010), available at http:// www. jud. ct. gov/ ji/ Criminal/ part 2/ 2. 4– 7. htm (last visited May 8, 2013) (“In this case, the defendant testified. An accused person, having testified, stands before you just like any other witness. [He/she] is entitled to the same considerations and must have [his/her] testimony tested and measured by you by the same factors and standards as you would judge the testimony of any other witness. You have no right to disregard the defendant's testimony or to disbelieve the defendant's testimony merely because [he/she] is accused of a crime. Consider my earlier instructions on the general subject matter of credibility and apply them to the defendant's testimony.”).
The judgment of the Appellate Court is affirmed. In this opinion ROGERS, C.J., and PALMER and McDONALD, Js., concurred.
NORCOTT, J., with whom ZARELLA and VERTEFEUILLE, Js., join, concurring.
For nearly 120 years since State v. Fiske, 63 Conn. 388, 392, 28 A. 572 (1893), Connecticut trial judges have had the discretion, subject to certain constitutional limitations, to instruct jurors that they may consider a criminal defendant's interest in the outcome of the case in determining the credence to be afforded to his testimony, culminating in the charge upheld in State v. Williams, 220 Conn. 385, 397, 599 A.2d 1053 (1991), and again challenged in this certified appeal. In part II of its opinion, the majority uses our supervisory authority over the administration of justice to overrule this extensive body of precedent sub silentio as it “direct[s] our trial courts in the future to refrain from instructing jurors, when a defendant testifies, that they may specifically consider the defendant's interest in the outcome of the case and the importance to him of the outcome of the trial.” Because I respectfully disagree with the majority's rather summary use of the extraordinary remedy that is our supervisory power, I write separately to emphasize: (1) my agreement with the majority that the defendant's interest instruction given in this case did not deprive the defendant, Rafael Medrano, of his right to be presumed innocent or his right to a fair trial under the United States constitution as interpreted by contemporaryfederal case law; and (2) because of the confusion likely to be created by the majority's new supervisory rule, I would continue to leave our trial judges the discretion to give properly phrased instructions that direct jurors to treat the defendant's testimony like that of any other witness, while evenhandedly acknowledging the reality that, like any other witness, they may consider the defendant's interest in the outcome of the case in evaluating his credibility. Accordingly, I concur in the result reached in part II of the majority's opinion.
After giving an instruction on general principles for evaluating witnesses' credibility; see footnote 17 of this concurring opinion; the trial court instructed the jury: “Again, it's under the umbrella of credibility. The accused in this case took the stand and testified. In weighing the testimony of an accused person, you should apply the same principles by which the testimony of other witnesses is tested. And that necessarily involves a consideration of his interest in the outcome of the case. You may consider the importance to him of the outcome of the trial. An accused person, having taken the witness stand, stands before you, then, just like any other witness and is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including his interest in the verdict which you are about to render.”
The trial court further instructed the jury that evidence of the defendant's previous felony conviction was “not admissible to prove the guilt of the defendant in this particular case” and “has been admitted into evidence for the sole purpose of affecting his credibility. You must weigh the testimony and consider it along with all the other evidence in this case. You may consider the conviction of the defendant only as it bears upon his credibility and you should determine that credibility upon the same considerations as those given to any other witness.” This aspect of the instruction is not at issue in this certified appeal.
Because the defendant's claim on appeal, although comprehensively briefed, does not include a separate state constitutional argument claiming greater protection under the Connecticut constitution, I, like the majority, confine my analysis to the federal constitution. See, e.g., In re Melody L., 290 Conn. 131, 167–68, 962 A.2d 81 (2009).
I
I agree with the majority's conclusions that the defendant's interest instruction given in this case did not violate his presumption of innocence, right to due process and right to testify under the federal constitution, and that State v. Williams, supra, 220 Conn. at 397, 599 A.2d 1053, remains good law as a constitutional matter. Nevertheless, I write separately on this point to explore this issue in greater depth—particularly because we have not considered this question in any detail for more than twenty years and significant new authorities have emerged in the meantime.
I also agree with the majority that this unpreserved claim is reviewable pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
Thus, I begin by noting that this court has been rejecting challenges to variously worded defendant's interest instructions for more than one century since it decided State v. Fiske, supra, 63 Conn. at 392, 28 A. 572. In the interest of some brevity, however, I turn first to State v. Bennett, 172 Conn. 324, 374 A.2d 247 (1977), which I view as our leading defendant's interest charge decision guided by contemporary constitutional norms. In Bennett, the defendant challenged an instruction stating: “ ‘You will consider the importance to him of the outcome of the trial and his motive on that account for perhaps telling the truth.’ ” (Emphasis added.) Id., at 334, 374 A.2d 247. Observing that the trial court's use of “the word ‘perhaps' instead of ‘not’ the court departed from the usual charge given in such instances,” and “was more favorable to the defendant and it clearly was not in any way prejudicial to him,” this court noted that “[i]t is well-settled law that ‘[t]he fact that the witness is a defendant in a criminal prosecution, or is a participant in the offense or in a related offense, creates an interest which affects his credibility.’ ... ‘Where a defendant in a criminal case testifies in his own behalf, his interest in the result is a proper matter to be considered as bearing on his credibility, and it has been considered that his position of itself renders his testimony less credible than if he were a disinterested witness, especially where he has a criminal record’ .... As we said in State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87 [ (1972) ], cert. denied, 410 U.S. 988, 93 S.Ct. 1519, 36 L.Ed.2d 186 [ (1973) ]: ‘The rule is well settled in this state that the court may advise the jury that in weighing the credibility of an accused's testimony they can consider his interest in the outcome of the trial.’ We have adhered to this rule in many cases.” (Citations omitted; emphasis added.) State v. Bennett, supra, at 334–35, 374 A.2d 247.
See, e.g., State v. Williams, supra, 220 Conn. at 397, 599 A.2d 1053;State v. Smith, 201 Conn. 659, 665, 519 A.2d 26 (1986); State v. Higgins, 201 Conn. 462, 477, 518 A.2d 631 (1986); State v. Mack, 197 Conn. 629, 637–38, 500 A.2d 1303 (1985); State v. Roos, 188 Conn. 644, 645, 452 A.2d 1163 (1982) (per curiam); State v. Avcollie, 188 Conn. 626, 636–37, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2088, 77 L.Ed.2d 299 (1983); State v. Kurvin, 186 Conn. 555, 570, 442 A.2d 1327 (1982); State v. Maselli, 182 Conn. 66, 74, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); State v. Mastropetre, 175 Conn. 512, 525, 400 A.2d 276 (1978); State v. Bennett, 172 Conn. 324, 336–37, 374 A.2d 247 (1977); State v. Jonas, 169 Conn. 566, 577–78, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L.Ed.2d 331 (1976); State v. Moynahan, 164 Conn. 560, 574, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S.Ct. 1519, 36 L.Ed.2d 186 (1973); State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925); State v. Saxon, 87 Conn. 5, 21–22, 86 A. 590 (1913).
State v. Guthridge, supra, 164 Conn. at 145, 318 A.2d 87, appears to be this court's first consideration of an expressly stated constitutional challenge to a defendant's interest instruction. In Guthridge, this court rejected the defendant's constitutional challenges to an instruction that had directed the jury to “apply to [the defendant's] testimony the same standards by which testimony of any other witness is measured and tested,” and “consider the interest of the accused in the case as you would consider that of any other person who has testified and in that connection you will consider the importance to the accused of the outcome of this trial. That is, an accused person having taken the witness stand stands before you just like any other witness and is entitled to the same considerations and must have his testimony measured in the same way as that of any other witness which would include your consideration of his obvious interest in the verdict which you are to render.” (Emphasis added; internal quotation marks omitted.) Id., at 151 n. 1, 318 A.2d 87. The court disagreed with the defendant's claim that this instruction had “unfairly singled out [the defendant's] testimony for adverse comment, because it was inconsistent with the presumption of innocence and because it suggested that his testimony was entitled to less weight than that of any other witness,” noting that “[t]he rule is well settled in this state that the court may advise the jury that in weighing the credibility of an accused's testimony they can consider his interest in the outcome of the trial.” Id., at 151, 318 A.2d 87, citing State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), and State v. Schleifer, 102 Conn. 708, 725, 130 A. 184 (1925). In Guthridge, the court further emphasized that the instruction to treat the defendant's testimony “ ‘as that of any other witness' ” “was phrased so as not to place the defendant apart, and served to answer any question raised as to the treatment to be accorded his testimony.” State v. Guthridge, supra, at 151, 318 A.2d 87.
In determining that the defendant's interest instruction in Bennett was not improper, this court quoted extensively from Reagan v. United States, 157 U.S. 301, 304, 15 S.Ct. 610, 39 L.Ed. 709 (1894), noting that, in that case, the United States Supreme Court had considered and rejected a challenge to a defendant's interest instruction as a potential violation of the then new criminal defendants' federal statutory right to testify and, in doing so, approved a charge that stated, inter alia, “ ‘ [t]he deep personal interest which he may have in the result of the suit should be considered by the jury in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit.’ ” (Emphasis added.) State v. Bennett, supra, 172 Conn. at 334–36, 374 A.2d 247. In Bennett, this court specifically relied on the Supreme Court's statement in Reagan that, “ ‘the court is not at liberty to charge the jury directly or indirectly that the defendant is to be disbelieved because he is a defendant, for that would practically take away the benefit which the law grants when it gives him the privilege of being a witness. On the other hand, the court may, and sometimes ought, to remind the jury that interest creates a motive for false testimony; that the greater the interest the stronger is the temptation, and that the interest of the defendant in the result of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his testimony. The court should be impartial between the government and the defendant.’ ” (Emphasis added.) Id., at 336–37, 374 A.2d 247, quoting Reagan v. United States, supra, at 310, 15 S.Ct. 610; see also State v. Bennett, supra, at 337, 374 A.2d 247 (“ ‘if any other witness for the government is disclosed to have great feeling or large interest against the defendant, the court may, in the interests of justice, call the attention of the jury to the extent of that feeling or interest as affecting his credibility’ ”).
Justice, later Chief Justice, Bogdanski, as he had in a prior case challenging the defendant's interest instruction; see State v. Jonas, 169 Conn. 566, 578–80, 363 A.2d 1378 (1975) ( Bogdanski, J., concurring and dissenting), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L.Ed.2d 331 (1976); dissented in Bennett. State v. Bennett, supra, 172 Conn. at 338, 374 A.2d 247. Justice Bogdanski concluded that the instruction therein “unduly singles out the defendant's testimony and improperly comments on his motives and interest in the outcome of the verdict without similarly commenting on the possible motives and interests of the complaining witnesses.” Id., at 338–39, 374 A.2d 247. Justice Bogdanski observed that this charge “placed a premium on the defendant's decision to testify. It had the effect of relegating his claim of innocence to a less credible testimonialcategory than that of the complaining witnesses. By creating such a circumstance, the charge undermines the presumption of innocence by attributing a motive to the defendant that can only attach if he is indeed guilty as charged.” Id., at 339, 374 A.2d 247. Justice Bogdanski further concluded that the charge violated Reagan v. United States, supra, 157 U.S. at 305, 15 S.Ct. 610 by “arbitrarily singl[ing] out a defendant's testimony” and “denigrat[ing] the weight to be accorded an accused's testimony....” State v. Bennett, supra, at 339, 374 A.2d 247. In reaching these conclusions, Justice Bogdanski observed that “to single out the defendant for exercising his right to testify is equally as repugnant as commenting on the exercise of his right to remain silent,” and stated that the “better rule is to limit the charge to a general statement of the elements by which all witnesses' testimony should be weighed: not to single out the defendant's testimony as less trustworthy than that of other witnesses.” Id., at 340, 374 A.2d 247.
Justice Bogdanski's dissents on this issue did not, however, carry the day. Indeed,in State v. Williams, supra, 220 Conn. at 385, 599 A.2d 1053, this court subsequently upheld a defendant's interest instruction materially identical to the instruction at issue in this certified appeal. Rejecting the defendant's constitutional challenge in Williams, this court quoted State v. Mack, 197 Conn. 629, 637, 500 A.2d 1303 (1985), and observed that “ ‘[w]e must ... examine the nuances of language, belatedly relied upon by the defendant, only for the purpose of determining whether they are significant enough to have affected the fairness of his trial.’ ” State v. Williams, supra, at 397, 599 A.2d 1053. The court noted that “[w]e have repeatedly approved the use of similar language and we do not find its use here unduly repetitive or transcending the bounds of evenhandedness,” and rejected the defendant's claim that “the trial court's three references to the defendant's interest in the outcome of the case were not ‘[evenhanded] in referring to the defendant's interest as compared with that of other witnesses,’ ” because in “each instance the trial court prefaced its remarks concerning the defendant's interest in the outcome with comments such as: (1) ‘[Y]ou should apply the same principles by which the testimony of other witnesses are tested’; (2) the accused ‘is entitled to the same consideration and must have his testimony measured in the same way as any other witness ...’; and (3) ‘you should apply the same test to it as you did with the other witnesses....' The continual emphasis was that the jury was to evaluate the defendant's testimony in the same fashion as the testimony of the other witnesses.” Id.
I note that Justice Bogdanski applied his analyses from Bennett and Jonas in two subsequent dissents from decisions upholding defendant's interest charges. See State v. Maselli, 182 Conn. 66, 78, 437 A.2d 836 (1980) ( Bogdanski, J., dissenting) (instruction stating, inter alia, “ ‘anaccused person, having taken the witness stand stands before you just like any other witness and is entitled to the same considerations and must have his testimony measured in the same way as that of any other witness, which would include your consideration of his obvious interest in the verdict ’ ” [emphasis in original] ), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); State v. Mastropetre, 175 Conn. 512, 525–26, 400 A.2d 276 (1978) ( Bogdanski, J., dissenting) (instruction stating, inter alia, that evaluating defendant's testimony “ ‘ necessarily involves a consideration of his great interest in the outcome of this case’ ” and that accused “ ‘is entitled to the same consideration and must have his testimony measured by the same tests as applied to other witnesses including, particularly, his interest in the verdict, which you may render’ ” [emphasis in original] ).
The defendant's interest instruction in Williams stated: “ ‘In weighing the testimony of an accused person obviously you should apply the same principles by which the testimony of other witnesses are tested. And that necessarily involves a consideration of his interest in the outcome of the case. Now an accused person having taken the witness stand stands before you then like any other witness, and is entitled to the same consideration and must have his testimony measured in the same way as any other witness including however his interest in the verdict which you are asked to render.’ ” (Emphasis in original.) State v. Williams, supra, 220 Conn. at 396 n. 4, 599 A.2d 1053.
In Williams, “[t]he trial court further stated: ‘You are not to disregard the evidence of this accused merely because he was convicted of other crimes. You must weigh the testimony and consider it along with all the other evidence in the case; and you may take into account of course all the evidence that you find to be credible on his part. And the testimony that he has offered to you should be given the same considerations; and you should apply the same test to it as you did with the other witnesses in the course of this trial, including however, consideration of his interest in the outcome of the case.’” (Emphasis in original.) Id.
Since our approval of the particular instruction given in Williams, reviewing courts have repeatedly upheld its use in other cases. See State v. White, 127 Conn.App. 846, 857–58, 17 A.3d 72, cert. denied, 302 Conn. 911, 27 A.3d 371 (2011); State v. Kendall, 123 Conn.App. 625, 670–71, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010); State v. Mann, 119 Conn.App. 626, 637, 988 A.2d 918, cert. denied, 297 Conn. 922, 998 A.2d 168 (2010); State v. Elson, 116 Conn.App. 196, 221–22, 975 A.2d 678 (2009), superseded on other grounds, 125 Conn.App. 328, 9 A.3d 731 (2010) (en banc), cert. granted, 300 Conn. 904, 12 A.3d 572 (2011); State v. Smith, 65 Conn.App. 126, 143–44, 782 A.2d 175 (2001), rev'd on other grounds, 262 Conn. 453, 815 A.2d 1216 (2003); State v. Maia, 48 Conn.App. 677, 688–90, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998); State v. Jones, 44 Conn.App. 476, 489–90, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997);State v. Scarpiello, 40 Conn.App. 189, 213–15, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996); State v. Colon, 37 Conn.App. 635, 640–41, 657 A.2d 247, cert. denied, 234 Conn. 911, 660 A.2d 354 (1995). Further, the Appellate Court recently rejected a comprehensive state constitutional challenge to the Williams instruction as well. See State v. Mann, supra, at 637–45, 988 A.2d 918; cf. State v. Higgins, 201 Conn. 462, 476–77, 518 A.2d 631 (1986) (rejecting state constitutional challenge embodied in claimed state constitutional right to testify, which is “doubtful ... because, at the time of the adoption of our state constitution in 1818, a defendant was unable to testify as a witness in his own case because of his interest, a disability that was not removed until 1867, when the common law rule was modified by the statutory predecessor of General Statutes § 54–84”).
In determining whether this lengthy body of case law upholding the defendant's interest instructions in Connecticut is still viable under contemporary federal constitutional standards, I note first that there is no United States Supreme Court decision directly on point, given that Reagan v. United States, supra, 157 U.S. at 301, 15 S.Ct. 610 discussed in State v. Bennett, supra, 172 Conn. at 335–37, 374 A.2d 247, was not a constitutionally based decision. Thus, I look to the recent decisions of the United States Court of Appeals for the Second Circuit in United States v. Brutus, 505 F.3d 80 (2d Cir.2007), and United States v. Gaines, 457 F.3d 238 (2d Cir.2006), as particularly persuasive authority as to the contemporary federal constitutional standard. See DiMartino v. Richens, 263 Conn. 639, 663 n. 17, 822 A.2d 205 (2003); accord, e.g., People v. Brokenbough, 52 App.Div.3d 525, 859 N.Y.S.2d 678 (2008) (rejecting constitutional challenge to defendant's interest instruction relying on Brutus and Gaines as contemporaryauthority where leading case from New York Court of Appeals, People v. Ochs, 3 N.Y.2d 54, 143 N.E.2d 388, 163 N.Y.S.2d 671 [ (1957) ], was more than fifty years old).
In its 1895 decision in Reagan v. United States, supra, 157 U.S. at 311, 15 S.Ct. 610 the United States Supreme Court determined that trial courts do not burden the defendant's statutory right to testify by “charg [ing] the jury that the peculiar and deep interest which the defendant has in the result of the trial is a matter affecting his credibility, and to be carefully considered by them.” In my view, the United States Supreme Court's decision in Reagan is not controlling on this constitutional question because, unlike later authority from lower federal and sister state courts, it does not consider the constitutional implications of the defendant's interest instruction vis-a-vis the presumption of innocence, right to testify and right to a fair trial. See, e.g., United States v. Gaines, 457 F.3d 238, 245 (2d Cir.2006); see also, e.g., United States v. Rollins, 784 F.2d 35, 37 (1st Cir.1986) (observing that defendant's interest charge endorsed in Reagan was “understandable” because “[a]t that time the fact that a defendant could be allowed to testify was a relatively recent event,” but “[s]ince that time ... the lower courts have been increasingly troubled with the seeming psychological inconsistency of charging in one breath that a defendant is presumed to be innocent, and in the next that his, or her, testimony is peculiarly suspect”); compare Portuondo v. Agard, 529 U.S. 61, 70–73, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000) (rejecting claim that “the prosecutor's comments [about the defendant's opportunity to tailor his testimony] were impermissible because they were ‘generic’ rather than based upon any specific indication of tailoring,” in reliance on Reagan for proposition that “this [c]ourt has approved of such ‘generic’ comment[s] before” in form of “perfectly proper” defendant's interest instruction that is “long tradition that continues to the present day” and was “given in this very case”), with id., at 80–81, 120 S.Ct. 1119 (Ginsburg, J., dissenting) (challenging majority's reliance on Reagan as “a decision which, by its very terms, does not bear on today's constitutional controversy” because it “made no determination of constitutional significance or insignificance, for it addressed no constitutional question”).
In Brutus, the Second Circuit observed that, under “our system of criminal justice, it is ‘axiomatic and elementary’ that defendants are entitled to a presumption of innocence.... ‘To implement the presumption,’ the Supreme Court has warned, ‘courts must be alert to factors that may undermine the fairness of the fact-finding process.’ ... Our adherence to this admonishment has, on more than one occasion, required that we ‘[place] out of bounds practices that threaten to dilute the presumption of innocence.’ ” (Citations omitted.) United States v. Brutus, supra, 505 F.3d at 85–86, citing Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895), and United States v. Gaines, supra, 457 F.3d at 245–46. Applying these general principles, the Second Circuit followed, inter alia, the decision of the United States Court of Appeals for the First Circuit in United States v. Dwyer, 843 F.2d 60, 62–63 (1st Cir.1988), and determined that the defendant's interest instructions that highlighted the defendant's “ ‘ deep personal interest in [the case] ... possessed by no other witness ... [which] create[d] a motive to testify falsely ’ ” violated the defendant's presumption of innocence. (Emphasis added.) United States v. Brutus, supra, at 86.
As the Second Circuit notes in United States v. Gaines, supra, 457 F.3d at 247–48, the United States Court of Appeals for the Eighth Circuit has also disapproved of targeted defendant's interest instructions. See Taylor v. United States, 390 F.2d 278, 285 (8th Cir.) (“Observ[ing] ... that the continuing and frequent attack on an instruction of this kind indicates that its use leaves defense counsel with a troubled mind. We suspect that this discomfort would be alleviated if the defendant were included by reference in the court's general instructions as to all witnesses. We would prefer that the defendant not be singled out. His interest is obvious to the jury. A general reference, such as ‘including the defendant’, should suffice.”), cert. denied, 393 U.S. 869, 89 S.Ct. 155, 21 L.Ed.2d 137 (1968). Indeed, the Eighth Circuit appears to take the hardest line of all the circuits with respect to defendant's interest instructions, deeming improper an instruction relatively similar to the one approved of by this court in State v. Williams, supra, 220 Conn. at 397, 599 A.2d 1053, namely, that: “ ‘A defendant who wishes to testify is a competent witness, and his testimony should be judged in the same way as that of any other witness. In determining the degree of credibility that should be accorded by you to the defendant's testimony, you're entitled to take into consideration the fact that he is the defendant and the personal interest he has in the result of your verdict.’ ” United States v. Bear Killer, 534 F.2d 1253, 1260 (8th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976); see also id. (noting that “continued use” of defendant's interest instruction “can cause this [c]ourt to declare, as a per se rule, that the error in giving the instruction can never be considered harmless”).
Indeed, the Second Circuit observed in Gaines that, “[t]he critical defect in a jury instruction that says the defendant has a motive to lie is its assumption that the defendant is guilty. That defect is not cured by a further charge that a defendant can still be truthful.... Accordingly, to prevent a needless threat of dilution of the presumption of innocence, we hereby direct district courts in the circuit not to charge juries that a testifying defendant's interest in the outcome of the case creates a motive to testify falsely.” (Citations omitted.) United States v. Gaines, supra, 457 F.3d at 247. The court also directed district courts not to “instruct juries to the effect that a testifying defendant has a deep personal interest in the case,” and emphasized that a “[witness'] interest in the outcome of the case ought to be addressedin the court's general charge concerning witness credibility. If the defendant has testified, that charge can easily be modified to tell the jury to evaluate the defendant's testimony in the same way it judges the testimony of other witnesses.” Id., at 249. Significantly, however, the Second Circuit declined to “micromanage,” and did not totally deprive district courts of the authority to give a defendant's interest charge when “deemed appropriate”—going so far as to set forth a suggested instruction “stripped of the language we find to have prejudiced [the defendant in] Gaines.” Id.
Other circuits view the propriety of the defendant's interest instruction differently than do the First, Second and Eighth Circuits. See, e.g., United States v. Nunez–Carreon, 47 F.3d 995, 997–98 (9th Cir.) (upholding, with stated reservation, charge permitting jury to “consider any interest the defendant may have in the outcome of the case, his hopes and fears and what he has to gain or lose as a result of your verdict”), cert. denied, 515 U.S. 1126, 115 S.Ct. 2287, 132 L.Ed.2d 289 (1995); United States v. Jones, 587 F.2d 802, 806 (5th Cir.1979) (rejecting challenge to instruction that jurors “were entitled to take into consideration the fact that [the defendant] had a ‘very keen personal interest’ in the outcome of the suit”). Further, as surveyed in State v. Mann, supra, 119 Conn.App. at 641, 988 A.2d 918, there is long-standing division among our sister states with respect to the propriety of certain defendant's interest instructions.
The Second Circuit's suggested defendant's interest charge is as follows: “The defendant in a criminal case never has any duty to testify or come forward with any evidence. This is because, as I have told you, the burden of proof beyond a reasonable doubt remains on the government at all times, and [the defendant] is presumed innocent. In this case, [the defendant] did testify and he was subject to cross-examination like any other witness. You should examine and evaluate the testimony just as you would the testimony of any witness with an interest in the outcome of the case.” (Emphasis added; internal quotation marks omitted.) United States v. Gaines, supra, 457 F.3d at 249–50 n. 9; see also United States v. Brutus, supra, 505 F.3d at 88 (endorsing same instruction).
Under these cases, I conclude that a defendant's interest instruction will pass constitutional muster if it does not: (1) excessively single out a defendant relative to other witnesses in the case; (2) suggest that a defendant has a motive to lie in his testimony; or (3) use language that calls attention to the defendant's interest disproportionately in relation to the credibility or interests of other witnesses in the case that are identified in the jury instructions, such as police officers, accomplices, certain complaining witnesses and jailhouse informants. This is consistent with our “stress [on] the importanceof even-handedness in referring to the defendant's interest as compared to that of other witnesses.[Even] technically correct instructions on this subject may violate this principle if repeated unnecessarily or overemphasized in some other manner.” State v. Mack, supra, 197 Conn. at 638, 500 A.2d 1303.
See, e.g., State v. Nieves, 36 Conn.App. 546, 551, 653 A.2d 197 (“The court was careful to instruct the jury that the testimony of the police officers, toxicologist, and expert police witness was to be weighed and balanced as carefully as that of any other witnesses. While it is preferable to give appropriate emphasis to the instruction on police testimony by devoting a separate instruction to that subject, we cannot say that in this case the charge was deficient merely because it was not given separately.”), cert. denied, 232 Conn. 916, 655 A.2d 260 (1995).
“[T]he inherent unreliability of accomplice testimony ordinarily requires a particular caution to the jury [because] ... [t]he conditions of character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he testifies. When those conditions exist, it is the duty of the [court] to specially caution the jury.” (Internal quotation marks omitted.) State v. Diaz, 302 Conn. 93, 102 n. 7, 25 A.3d 594 (2011).
“[W]hen the complaining witness [himself] could ... have been subject to prosecution depending only upon the veracity of his account of [the] particular criminal transaction, the court should ... [instruct] the jury in substantial compliance with the defendant's request to charge to determine the credibility of that witness in the light of any motive for testifying falsely and inculpating the accused.” (Internal quotation marks omitted.) State v. Diaz, 302 Conn. 93, 102 n. 6, 25 A.3d 594 (2011).
“In light of this growing recognition of the inherent unreliability of jailhouse informant testimony, we are persuaded that the trial court should give a special credibility instruction to the jury whenever such testimony is given, regardless of whether the informant has received an express promise of a benefit. As we indicated in [State v. Patterson, 276 Conn. 452, 465, 886 A.2d 777 (2005) ], the trial court should instruct the jury that the informant's testimony must ‘be reviewed with particular scrutiny and weighed ... with greater care than the testimony of an ordinary witness.’ ” State v. Arroyo, 292 Conn. 558, 569–70, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010).
I note that this court recently declined to use its supervisory powers to extend the jailhouse informant instruction mandated by Arroyo and Patterson to all witnesses who are in a position to receive a benefit from the government, but “reaffirm[ed] the well established common-law rule that it is within the discretion of a trial court to give a cautionary instruction to the jury whenever the court reasonably believes that a witness' testimony may be particularly unreliable because the witness has a special interest in testifying for the state and the witness' motivations may not be adequately exposed through cross-examination or argument by counsel.” State v. Diaz, 302 Conn. 93, 113, 25 A.3d 594 (2011).
Applying these standards, I conclude that the defendant's interest charge given in this case, and previously upheld in State v. Williams, supra, 220 Conn. at 397, 599 A.2d 1053, did not violate the defendant's due process rights, his right to testify or his presumption of innocence. Specifically, unlike the instructions held unconstitutional in United States v. Gaines, supra, 457 F.3d at 247, and United States v. Brutus, supra, 505 F.3d at 86, the instruction in this case did not state that the defendant had any motivation or incentive to lie or use descriptive language elevating his interest over that of the other witnesses who testified. Its evenhanded nature is further demonstrated by the trial court's admonition that the defendant's testimony was subject to consideration under “the same principles by which the testimony of other witnesses is tested” and that an “accused person having taken the witness stand, stands before you, then, just like any other witness and is entitled to the same consideration....” Indeed, the instruction was linguistically consistent with the instruction suggested by the Second Circuit; see footnote 11 of this concurring opinion; that eliminated the language that rendered unconstitutional the charges considered in Gaines and Brutus. Furthermore, the First Circuit, after distinguishing more “egregious” examples, rejected a constitutional challenge to a nearly identical instruction. See United States v. Gonsalves, 435 F.3d 64, 72 (1st Cir.2006) (upholding instruction that jury “ ‘should examine and evaluate his testimony just as you would the testimony of any witness with an interest in the outcome of the case,’ ” noting in particular that it was “immediately followed by the warning that ‘[y]ou should not disregard or disbelieve [the defendant's] testimony simply because he is charged as a defendant in this case’ ”). Accordingly, I view the defendant's interest instruction, as upheld in Williams, as continuing good law in light of the recent constitutional decisions from the Second Circuit, and I agree with the majority's declination of the defendant's invitation to overrule it.
I note that these contemporary constitutional standards render questionable some of the specific defendant's interest instructions that this court previously has upheld against constitutional challenge, in particular references to: (1) “ ‘the importance to him of the outcome of the trial and his motive, if any, for telling the truth or not telling the truth,’ ” upheld in State v. Higgins, supra, 201 Conn. at 475 n. 6, 518 A.2d 631; (2) the defendant's “ ‘motive on that account for perhaps telling the truth’ ” upheld in State v. Bennett, supra, 172 Conn. at 334, 374 A.2d 247; (3) the defendant's “ ‘motive on that account for not telling the truth,’ ” upheld in State v. Jonas, supra, 169 Conn. at 578, 363 A.2d 1378, and the similar instruction upheld in State v. Mack, supra, 197 Conn. at 637, 500 A.2d 1303; (4) “ ‘obvious interest in the verdict’ ” upheld in State v. Guthridge, supra, 164 Conn. at 151 n. 1, 318 A.2d 87, the same instruction upheld in State v. Maselli, 182 Conn. 66, 78, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); (5) “ ‘great interest in the outcome of this case’ ” upheld in State v. Mastropetre, 175 Conn. 512, 525–26, 400 A.2d 276 (1978); and (6) “ ‘above all ... take into consideration the fact that he is the accused’ ” upheld in State v. Fiske, supra, 63 Conn. at 389, 28 A. 572.
The trial court's general credibility charge instructed the jury that: “In deciding what the facts are, you must consider all the evidence. In doing this, you must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness' testimony. In making that decision, you may take into account a number of factors including the following: (1) Was the witness able to see or hear or know the things about which that witness testified? (2) How well was the witness able to recall and describe those things? (3) What was the witness' manner while testifying? (4) Did the witness have an interest in the outcome of this case or any bias or prejudice concerning any party or any matter involved in the case? (5) How reasonable was the witness' testimony considered in the light of all the evidence in the case? And (6) was the witness' testimony contradicted by what that witness has said or done at another time or by the testimony of other witnesses or by other evidence?
“If you should think that a witness has deliberately testified falsely in some respect, you should carefully consider whether you should rely upon any of his or her testimony. In deciding whether or not to believe a witness, keep in mind that people sometimes forget things. You need to consider, therefore, whether a contradiction is an innocent lapse of memory or an intentional falsehood. And that may depend on whether it has to do with an important fact or with only a small detail.
“These are some of the factors that you may consider in deciding whether to believe testimony. The weight of the evidence presented by each side does not depend on the number of witnesses testifying on one side or the other. You must consider all the evidence in the case and you may decide that the testimony of a smaller number of witnesses on one side has greater weight than that of a larger number on the other side. It is the quality of the evidence and not the quantity of the evidence that you [are to] consider. All of these are matters for you to consider in finding the facts.” (Emphasis added.)
Further, the policy arguments endorsed by the defendant, namely, that the “defendant's interest is obvious to jurors from the moment they enter the courtroom” and that “[w]hen a judge states or implies in an instruction that a defendant has a motive to lie, the judge insinuates that the defendant is guilty”; A. Goldenberg, “Interested, But Presumed Innocent: Rethinking Instructions on the Credibility of Testifying Defendants,” 62 N.Y.U. Ann. Surv. Am. L. 745, 774–75 (2007); are, in my view, addressed by a more neutrally phrased instruction that eliminates the phrases deemed constitutionally offensive by the Second Circuit.
II
Having determined that the defendant's interest charge given in this case pursuant to State v. Williams, supra, 220 Conn. at 397, 599 A.2d 1053, did not violate the defendant's constitutional rights, I now turn to whether we should exercise our supervisory authority to preclude trial courts from giving such instructions in the future, as a practical matter overruling Williams and its predecessors outlined in footnote 4 of this concurring opinion. “It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice.... Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. ... Under our supervisory authority, we have adopted rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process.” (Internal quotation marks omitted.) State v. Rose, 305 Conn. 594, 607, 46 A.3d 146 (2012). That the rule is not constitutionally required does not preclude the exercise of our supervisory powers; articulating a rule of policy and reversing a conviction under our supervisory powers “is perfectly in line with the general principle that this court ordinarily invoke[s] [its] supervisory powers to enunciate a rule that is not constitutionally required but that [it] think[s] is preferable as a matter of policy.” (Internal quotation marks omitted.) Id., at 608, 46 A.3d 146.
That being said, “prudence dictates that we invoke our supervisory power sparingly”; id., at 607, 46 A.3d 146; as it is “an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.... Constitutional, statutory and procedural limitations are generally adequate to protect the rights of the defendant and the integrity of the judicial system. Our supervisory powers are invoked only in the rare circumstance where these traditional protections are inadequate to ensure the fair and just administration of the courts.” (Internal quotation marks omitted.) State v. Wade, 297 Conn. 262, 296, 998 A.2d 1114 (2010).
In my view, there is no indication that the traditional constitutional, statutory and procedural limitations are so inadequate as to mandate resort to the supervisory power to in essence overrule our prior case law and ban nearly all defendant's interest instructions—even those that comport with constitutional limitations. First, given the “considerable concern” of the criminal defense bar noted by the defendant, I find it significant that the experienced trial judges who comprise the judicial branch criminal jury instruction committee have issued a revised model jury instruction for use when defendants testify that no longer includes a specific mention of the defendant's interest, while using the instruction's commentary to apprise trial judges who do wish to give such an instruction of this court's decision in State v. Williams, supra, 220 Conn. at 397, 599 A.2d 1053, and the limitations imposed by United States v. Brutus, supra, 505 F.3d at 80. See Connecticut Criminal Jury Instructions § 2.4–7 (4th Ed. 2010), available at http:// www. jud. ct. gov/ ji/ Criminal/ part 2/ 2. 4– 7. htm (last visited May 8, 2013). This would suggest, then, that institutional steps short of the extraordinary exercise of our supervisory power are leading, as a practical matter, to the incremental decline of the defendant's interest instruction.
“This court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case law.... The doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.... Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.... It is the most important application of a theory of decisionmaking consistency in our legal culture and ... is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.” (Citation omitted; internal quotation marks omitted.) State v. Salamon, 287 Conn. 509, 519, 949 A.2d 1092 (2008).
I recognize, of course, that, “[t]he value of adhering to [past] precedent is not an end in and of itself ... if the precedent reflects substantive injustice. Consistency must also serve a justice related end.... When a previous decision clearly creates injustice, the court should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision.... The court must weigh [the] benefits of [stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust.... It is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations.... In short, consistency must not be the only reason for deciding a case in a particular way, if to do so would be unjust. Consistency obtains its value best when it promotes a just decision.... Moreover, [e]xperience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better.... Indeed, [i]f law is to have current relevance, courts must have and exert the capacity to change a rule of law when reason so requires.... [Thus] [t]his court ... has recognized many times that there are exceptions to the rule of stare decisis.” (Citation omitted; internal quotation marks omitted.) Id., at 520–21, 949 A.2d 1092.
As of December 7, 2007, the judicial branch's model jury instructions provide: “In this case, the defendant testified. An accused person, having testified, stands before you just like any other witness. (He/she) is entitled to the same considerations and must have (his/her) testimony tested and measured by you by the same factors and standards as you would judge the testimony of any other witness. You have no right to disregard the defendant's testimony or to disbelieve the defendant's testimony merely because (he/she) is accused of a crime. Consider my earlier instructions on the general subject matter of credibility and apply them to the defendant's testimony.” Connecticut Criminal Jury Instructions § 2.4–7 (4th Ed. 2010), available at http:// www. jud. ct. gov/ ji/ Criminal/ part 2/ 2. 4– 7. htm (last visited May 3, 2013).
The committee commentary cites approvingly, inter alia, State v. Williams, supra, 220 Conn. at 397, 599 A.2d 1053, but notes, however, that the “appellate courts have consistently upheld an instruction that referenced the defendant's ‘interest in the outcome’ of the case, as long as it was accompanied by an instruction to evaluate the defendant's testimony in the same fashion as the testimony of other witnesses”; Connecticut Jury Instructions, supra, § 2.4–7, commentary; observing that the Second Circuit found it improper in United States v. Brutus, supra, 505 F.3d at 80, “to instruct that the defendant's interest in the outcome of the case ‘creates a motive to testify falsely.’ ” Connecticut Jury Instructions, supra, § 2.4–7, commentary.
Finally, the adoption of a supervisory rule precluding the use of all defendant's interest instructions is apt to complicate the appellate review of these claims, which likely will continue to proliferate until the United States Supreme Court resolves the nationwide split in authority on this point. See footnotes 9 and 10 of this concurring opinion. Unless the majority intends its supervisory rule to make the defendant's interest instruction akin to a structural error that is per se reversible because its effect on the fact finder is deemed to be an unquantifiable impropriety that casts doubt on the underlying fairness of the trial proceeding; see, e.g., State v. Rose, supra, 305 Conn. at 612–13, 46 A.3d 146 (forcing defendant to stand trial in prison garb requires reversal per se); appellate review of defendant's interest claims will now require the court to engage in two levels of review in order to allocate the burden of proving harm, and will not relieve reviewing courts of the necessity to engage in constitutional analysis. Specifically, the reviewing court will need to determine whether the defendant's interest instruction given comported with the constitutional standards outlined in Gaines and Brutus. If it did not, the state would then bear the burden of proving harmlessness beyond a reasonable doubt. See, e.g., State v. Osimanti, 299 Conn. 1, 16, 6 A.3d 790 (2010); accord United States v. Brutus, supra, 505 F.3d at 88–89. If it does, and the instruction merely amounted to a supervisory rule violation, then the impropriety would be non-constitutional in nature and the defendant would bear the burden of proving harm. See, e.g., State v. Osimanti, supra, at 16–17, 6 A.3d 790; see also State v. Bonner, 290 Conn. 468, 500, 964 A.2d 73 (2009) (“a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict” [internal quotation marks omitted] ). So, it is not at all clear to me that the majority's decision to preclude all defendant's interest instructions simplifies matters or provides protection beyond that afforded by the constitution. Accordingly, I would continue to adhere to a traditional constitutional analysis of these claims, and deem the exercise of the supervisory power unnecessary at this time.
Accordingly, I concur in the result reached by part II of the majority's opinion.