State v. Sinvil (concurring)
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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. SINVIL CONCURRENCE PALMER, J., concurring. I agree with the conclusion of the majority and with most of its reasoning. I concur separately only because I disagree with that portion of the majority s opinion in which the majority concludes that the improper remarks of the state s attorney were invited by defense counsel s comments during closing arguments. As the Appellate Court observed, [t]he prosecutor s [improper] remarks that he was burnt out during the trial and having a hard time focusing were made in response to defense counsel s argument that if there was some sort of ruckus going on in the bedroom when the kids were sleeping in the other room, I think the kids would wake up in the middle of the night. In essence, defense counsel was arguing that the fact that [the victim] did not scream upon finding the defendant in her bed with her supported an inference that the encounter was consensual. . . . [Defense counsel thus] was arguing one possible permissible inference from the evidence. This was proper argument and . . . it did not invite a response in rebuttal which referred to irrelevant matters not in evidence. (Emphasis in original.) State v. Sinvil, 76 Conn. App. 761, 771 72, 821 A.2d 813 (2003). Although defense counsel s comments did invite the state s attorney s proper rebuttal argument that there had been no screaming or, alternatively, that the victim s children might not have heard any such screaming because they frequently slept with the television on, defense counsel s comments cannot fairly be characterized as inviting the state s attorney s improper rebuttal argument that, during trial, he was burnt out, having a hard time focusing, and that he should have asked [the victim] why she didn t scream. In my view, even though the improper comments of the state s attorney about his physical condition and his failure to ask the victim why she did not scream were not invited, I nevertheless do not believe that, under all the circumstances, those comments rise to the level of a due process violation. I therefore agree with the conclusion of the majority that, contrary to the determination of the Appellate Court, the improper remarks of the state s attorney do not warrant a new trial. Accordingly, I concur in the judgment.
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