State v. Alexander (2000)

In State v. Alexander, 254 Conn. 290, 755 A.2d 868 (2000), the Court held that a prosecutor's comments regarding a defendant's ability to tailor his testimony to the testimony of other witnesses does not implicate his right to a fair trial or his right to confrontation. The Supreme Court stated that "by exercising his fifth amendment right to testify on his own behalf, it is axiomatic that a defendant opens the door to comment on his veracity. It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination. . . . A defendant cannot both take the stand and be immune from impeachment. . . . An accused who testifies subjects himself to the same rules and tests which could by law be applied to other witnesses." 254 Conn. at 297-98. The Supreme Court reasoned that "it is . . . quite impossible for the jury to evaluate the credibility of the defendant's testimony while blotting out from its mind the fact that before giving the testimony the defendant had been sitting there listening to the other witnesses." 254 Conn. at 299. The Court held that the prosecutor engaged in misconduct by arguing facts not in evidence, vouching for the witness's credibility, and appealing to the passions of the jury. The argument was as follows: "Just because we have a twelve year old victim, who was eight at the time the incident occurred, recalling what happened to her when she was eight and nine in front of a room full of strangers, doesn't mean we can't depend on her word. Because we should depend on her word. And, why? I'11 tell you why. Common sense tells you that no one--no one would put herself through such an ordeal if nothing happened . . . . The victim knew when she came to court she had to tell the truth. And that's what she did. . . . Remember the victim said, 'I think it happened in the Fall. I was eight.' And how does she remember she was eight? 'Because I didn't know him when I was seven.' That's how little kids think. They can't make this up. . . . Nor did she exaggerate. Nor did she have any motive to lie. . . . There's no motive for her to lie. . . . You're supposed to believe that as a result of that comment the victim fabricated this whole incident to get back at him. I don't know of that many eight or nine year olds that are that sophisticated to fabricate a story involving sexual abuse. . . . Now, what else could they say? That she fantasized this, made this all up in her head? Well, if you think an eight year old child would fantasize about a fifty year old man coming into her room at night and sticking his finger in her vagina, then you have a right to think that. . . . The victim suffered a lot of negative things after she disclosed. And, if she was lying, she would have changed her story. . . . And, why didn't she do it? Because she told the truth." (Id. at p. 875.) The court held that the prosecutor improperly expressed her own opinion, directly and indirectly, as to the victim's credibility because the prosecutor (1) implied that the victim testified truthfully because she is young and honest, and (2) further contended that no child would possibly make up a story regarding sexual abuse. As to the claim that the prosecutor argued facts outside the evidence, the court explained as follows: "In the present case, the prosecutor did not confine herself to the record. She explained to the jury, 'that's how little kids think,' without any evidence to support this assertion. She stated that children 'can't make this up. . . .' The summation suggested that a eight year old is not 'sophisticated' enough to conjure up a story of sexual abuse, without any evidence supporting that contention. These are the principal issues set forth for the jury to determine on their own. It was, therefore, wholly improper for the prosecutor to insinuate the truthfulness of certain claims, thereby inducing the jury to review the case by means of facts not in evidence." ( Alexander, supra, 755 A.2d at p. 878.) In State v. Alexander, the Supreme Court of Connecticut held that the state's closing argument amounted to prosecutorial misconduct depriving defendant of a fair trial where the prosecutor argued: "Just because we have a twelve year old victim, who was eight at the time the incident occurred, recalling what happened to her when she was eight and nine in front of a room full of strangers, doesn't mean we can't depend on her word. Because we should depend on her word. And, why? I'll tell you why. Common sense tells you that no one -- no one would put herself through such an ordeal if nothing happened. . . . The victim knew when she came to court she had to tell the truth. And that's what she did. . . . Remember the victim said, "I think it happened in the Fall. I was eight." And, how does she remember she was eight? "Because I didn't know him when I was seven." That's how little kids think. They can't make this up. . . . Nor did she exaggerate. Nor did she have any motive to lie. . . . There's no motive for her to lie. . . . You're supposed to believe that as a result of that comment the victim fabricated this whole incident to get back at him. I don't know of that many eight or nine year olds that are that sophisticated to fabricate a story involving sexual abuse. . . . The victim suffered a lot of negative things after she disclosed. And, if she was lying, she would have changed her story. . . . And, why didn't she do it? Because she told the truth." (Id. at 875.) The court determined that these statements constituted improper vouching because it implied that the victim testified truthfully because she is young and therefore honest, and that no child would possibly make up a story regarding sexual abuse. Id. at 877. The court also concluded that the prosecutor improperly commented on facts not in evidence: "In the present case, the prosecutor did not confine herself to the record. She explained to the jury, "that's how little kids think," without any evidence to support this assertion. She stated that children "can't make this up. . . ." The summation suggested that a eight year old is not "sophisticated" enough to conjure up a story of sexual abuse, without any evidence supporting that contention. These are the principal issues set forth for the jury to determine on their own. It was, therefore, wholly improper for the prosecutor to insinuate the truthfulness of certain claims, thereby inducing the jury to review the case by means of facts not in evidence." (Id. at 878.) The Court concluded that a prosecutor's comments during closing argument were not improper when he stated that the defendant had the opportunity to observe the testimony of all the witnesses, consequently enabling him to tailor his testimony.