State v. Thompson (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. THOMPSON CONCURRENCE LAVINE, J., concurring. A prosecutor s excessive use of the word victim is objectionable when the commission of a crime is at issue because prevalent use of the term may cause the jury to draw an improper inference that the defendant committed a crime against the complainant. State v. Warholic, 278 Conn. 354, 370 n.7, 897 A.2d 569 (2006); see also State v. Victor O., 301 Conn. 163, 191 n.11, 20 A.3d 669, cert. denied, U.S. , 132 S. Ct. 583, 181 L. Ed. 2d 429 (2011). It is properly disfavored and can form the basis, depending on the circumstances, of a prosecutorial impropriety claim. It is, however, appropriate to note that while the word victim carries with it a distinct legal connotation when used in the setting of a trial against a particular criminal defendant, the word victim has a different, broader meaning when used in its colloquial sense. As our case law recognizes, juries understand that when the person making reference to the complaining witness is the prosecutor, the word victim is understood to mean alleged victim. State v. Smith, 51 Conn. App. 589, 592, 724 A.2d 527 (1999). To put it another way, virtually everyone understands that in its everyday sense, a victim is someone against whom a crime has been committed, or, at the very least, someone who claims that a crime has been committed against him or her. It is against this commonsense understanding of the word victim, informed by decades of crime dramas, television reports, and high profile trials, that the prosecutor s repeated use of the word victim must be measured. Given the reality that the word victim carries this broader meaning, and that jurors readily understand that prosecutors, police, and others in the criminal justice system habitually use the word victim as shorthand for alleged victim, I conclude that, while the use of the word victim is improper in cases in which there is a dispute as to whether a crime was committed, generally, its use is less likely to create a real injustice than other more weighty prosecutorial improprieties. It is agreed indeed, the trial court expressly concluded that the prosecutor s use of the word victim in this case was inadvertent. As the majority noted, there is nothing whatever in the record to suggest that the prosecutor repeatedly used the word victim surreptitiously to express her personal opinion about the charges against the defendant or to gain an unfair tactical advantage. Given the facts of this case particularly in light of the trial court s strong and effective curative instructions and the prosecutor s apologies I conclude that the defendant suffered no harm whatever as a consequence of the prosecutor s unaccountable mistakes. I would go further. I would posit that the prosecu- tor s conduct, if it disadvantaged anyone at all in the jury s eyes, was injurious to the state because the jury must have been left to wonder why the prosecutor could not conform her conduct to the repeated instructions of the court. For the foregoing reasons, I concur in the majority opinion.
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