State v. Campbell (Concurrence)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. CAMPBELL CONCURRENCE ESPINOSA, J., concurring. I agree with the outcome reached by the majority as well as most of the analysis in its well reasoned decision. I write separately, however, to express my disagreement with the analysis in part I A 1 of the majority opinion that addresses one of the golden rule claims of the defendant, Milton Campbell. Our Supreme Court recognized in State v. Bell, 283 Conn. 748, 931 A.2d 198 (2007), that a prosecutor may not ask the jury to put itself in the place of the victim, the victim s family, or a potential victim of the defendant ; id., 772; in an effort to appeal to the emotions, passions and prejudices of the jury. Arguments of this type are improper because they tend to divert the jury s attention from a rational appraisal of the evidence. Id., 773; see also State v. Warholic, 278 Conn. 354, 376, 897 A.2d 569 (2006). The animating principle behind the prohibition on golden rule arguments is that jurors should be encouraged to decide cases on the basis of the facts as they find them, and reasonable inferences drawn from those facts, rather than by any incitement to act out of passion or sympathy for or against any party. State v. Long, 293 Conn. 31, 57 58, 975 A.2d 660 (2009). In evaluating claims of prosecutorial impropriety arising from the statements made by a prosecutor, a reviewing court does not evaluate the challenged statements in artificial isolation but in the context of the evidence and the arguments of which they are a part. See State v. Francione, 136 Conn. App. 302, 325, 46 A.3d 219, cert. denied, 306 Conn. 903, 52 A.3d 730 (2012). Only when such statements are considered in appropriate context can a court accurately analyze the dispositive issue of whether the statements had an improper effect on the jury. Both our Supreme Court and this court have upheld the propriety of prosecutorial arguments that have invited jurors to put themselves in the place of a party for the purpose of evaluating the reasonableness of the party s conduct. See State v. Long, supra, 293 Conn. 58 (argument concerning victim encouraged jurors to draw inferences from evidence on basis of jurors views as to how similarly situated victim would act under circumstances); State v. Bell, supra, 283 Conn. 773 (arguments concerning defendant and state s witness invited jurors to draw inferences from evidence on basis of jurors views as to how similarly situated persons would act under circumstances); State v. Ovechka, 118 Conn. App. 733, 746, 984 A.2d 796 (argument concerning victim asked jurors to draw inferences from evidence on basis of jurors views as to how similarly situated victim would act under circumstances), cert. denied, 295 Conn. 905, 989 A.2d 120 (2010). In the present case, during closing argument, the defendant s attorney argued that the victim was not credible with regard to any of the events at issue because there was evidence that she lied to the police and emergency personnel immediately after she fled the defendant s apartment and called 911. The defendant s attorney drew the jury s attention to the undisputed evidence1 that the victim attempted to conceal certain facts about her encounter with the defendant on November 5, 2009, including the facts that, prior to the alleged assault, she picked up the defendant at his home, purchased alcohol and cocaine and voluntarily returned to the defendant s home where she ingested alcohol and drugs with him. In pointing out untruthful statements the victim made to the police, the defendant s attorney referred to the victim s initial statement to the police that, prior to the assault, the defendant had forced her into his home at knifepoint. The prosecutor, during rebuttal argument, referred to the ample evidence of the victim s history of using illegal drugs. She responded to the argument by the defendant s attorney, in relevant part, as follows: [P]art of [the victim s] addiction is that she made bad choices. And guess what? Being raped didn t cure her of that addiction. It didn t cure her of making cloudy decisions; isn t that amazing. Rape doesn t cure you. If you were just raped, ladies and gentlemen, would your thinking be clearer or would it be less clear? If you came to that moment in your life where you realized that all your bad decisions, your selfishness, your self-absorption, your addiction, led you all the way down to this, sitting in your car with no pants on, how would you feel about yourself? Would you try to paint yourself in a better light or a [worse] light? So, when she calls that 911 operator, how does she paint herself? How does she portray herself? I was dragged in the house. I was held at knifepoint. . . . [S]omeone come and help me. Get me out of here. And then she has a moment and the cops come; you know what, I went there. I went there. I did it. The prosecutor proceeded to question whether the defendant s attorney essentially had argued that the victim was not credible because she was a drug user or because she voluntarily had engaged in drug related activities with the defendant prior to the assault. In my view, the challenged statements, when considered in the context of the evidence presented at trial, the arguments by the defendant s attorney and the prosecutor s rebuttal argument, reflect that the prosecutor invited the jurors to put themselves in the place of the victim for the limited purpose of evaluating the significance of and reasonableness of the false statements that she made immediately after the assault occurred. The prosecutor s invitation to consider the victim s mindset did not occur in isolation; it immedi- ately preceded a discussion of the fact that the victim provided false information to the 911 operator concerning her presence at the defendant s home. Consistent with the victim s trial testimony concerning her false statements to the 911 operator, the prosecutor argued that the victim s false statements did not suggest a fabricated claim of sexual assault by asking the jury to consider that her untruthfulness to the 911 operator was motivated by an initial desire merely to portray herself in a better light following the assault. In so arguing, the prosecutor invited the jurors to draw inferences from the victim s statements to the police based on their views as to how a reasonable person in the victim s position might act in similar circumstances. Thus, I would conclude that the argument was based on the evidence and that it did not suggest an appeal to the emotions, passions or prejudices of the jurors. Relying on Long, Bell and Ovechka, I would conclude that the argument was not an instance of impropriety. For the foregoing reasons, I respectfully agree with the outcome reached by the majority, but not with the entirety of its analysis, as described previously. 1 The victim, in her trial testimony, admitted that she was not truthful to the 911 operator when she stated that the defendant forced her into his residence, but that she told the responding officers the truth about what had occurred. She said part of what motivated her initial statement was the fact that she was using illegal drugs and that she did not want her boyfriend to know she was at the defendant s house for that illicit purpose.
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