As stated in the 2003 Connecticut Supreme Court case of State v. Parrott, "[i]t is well settled that comment by the prosecuting attorney…on the defendant's failure to testify is prohibited by the fifth amendment to the United States constitution…." In connection with allegations made by the then 12-year-old daughter of his girlfriend and following a jury trial, Roger Ruffin was convicted of sexual assault in the first and fourth degrees and counts of risk of injury to a child. He appealed claiming that his due process rights to a fair trial were violated in several ways. The majority of the Appellate Court affirmed the judgment. The full panel rejected Ruffin's unpreserved claim that his due process rights were violated when the trial court considered pending charges against him in a separate case for similar offenses during sentencing. The sentencing court noted specifically that it was considering only the pending charges and any discussion of those charges made during the sentencing hearing implicating that other victims may exist, to the extent that they corroborated the victim's testimony. The court noted that it and the jury had found the victim credible. The court stated that it took into account the details of the presentence report, including the defendant's prior unblemished record and supportive statements by family and friends. The information, some unsworn and outside the record, was within the court's discretion to consider in arriving at a just sentence. The full panel also found no instructional error but disagreed over whether the prosecutor commented on the defendant's failure to testify, violating his due process rights. The prosecutor's statements included arguments that: "No person's testimony here gave you any reason to disbelieve [the victim], nor were you given any reason why the facts that she described could not have happened the way she described them…." The majority noted that the prosecutor did not directly discuss the defendant but noted the consistency of various testimony given at trial with the victim's version. Defense counsel did not object. The remarks were found not of such character that the jury would naturally and necessarily take them to be a comment on the accused's failure to testify. Judge McDonald dissented in part, finding that the state's no conflicting witness argument was naturally and necessarily an adverse comment on the defendant's silence. He alone could have provided conflicting testimony.

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