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STATE OF CONNECTICUT v. MAURICE ROSS
(AC 36406)
Lavine, Prescott and Mihalakos, Js.
Argued May 22—officially released July 22, 2014
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Mary Elizabeth Baran, former
senior assistant state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Maurice Ross, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a (a), and carrying a pistol or revolver without a
permit in violation of General Statutes § 29-35 (a). On
appeal, the defendant claims that he was deprived of
his constitutional right to a fair trial by prosecutorial
impropriety. Specifically, the defendant argues that dur-
ing closing and rebuttal argument, the prosecutor
improperly argued facts not in evidence and appealed
to the jury’s emotions. We agree with the defendant
that at least one of the prosecutor’s comments was
improper, but conclude that any improprieties did not
deprive the defendant of a fair trial. Accordingly, we
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. In early February, 2009, the defendant and the
victim, Sholanda Joyner, were involved in a romantic
relationship. The two had known each other since they
were children, and had dated intermittently during the
preceding eleven years. The victim’s relationship with
the defendant was, as the victim’s sister described it,
‘‘dysfunctional . . . .’’
Several days before February 5, 2009, the defendant
went to the victim’s apartment on Woolsey Street in
New Haven and encountered two of her male acquain-
tances. A physical altercation between the two men and
the defendant ensued, and the defendant was forcefully
ejected from the victim’s apartment. Shortly thereafter,
the defendant purchased a revolver for the purpose of
killing the two men. The defendant returned to the
victim’s apartment the next morning and encountered
the individuals who had assaulted him the previous day.
After displaying the revolver, the defendant took their
money, cell phones, and some drugs.
The victim’s relationship with the defendant deterio-
rated further in late January and early February, 2009.
At the end of January, 2009, the victim telephoned her
father, crying hysterically and complaining that she
wanted the defendant removed from her residence. On
February 5, 2009, the victim appeared, crying again, at
her father’s doorstep. Approximately two minutes later,
the defendant arrived and demanded that the victim
leave with him. Over the protests of the victim’s step-
mother, the defendant grabbed the victim by the arm
and pulled her out the door. Later that evening, at the
home of the victim’s grandmother, the victim was crying
and pleading with the defendant to leave her alone. The
defendant again commanded the victim to depart with
him, and the two left.
After leaving the house of the victim’s grandmother
at approximately 11 p.m., the defendant and the victim
walked to the victim’s apartment. Along the way, the
victim stopped and purchased some ecstasy pills and
phencyclidine (PCP). The victim and the defendant
smoked the PCP while en route to the victim’s apart-
ment. After arriving at the victim’s home, the defendant
and the victim went into the victim’s bedroom, and both
of them ingested ecstasy. At some point, the defendant
retrieved a revolver and asked the victim if she had
‘‘set [him] up . . . .’’ The defendant then fired one gun-
shot into her head, intentionally killing her. After mov-
ing the victim’s body next to the bed, the defendant
left the apartment, locking the door behind him, and
travelled to Waterbury for several days. While in Water-
bury, the defendant socialized at a club named ‘‘Club
Paradise.’’
The defendant returned to New Haven on February
8, 2009. Two days later, he encountered Terrence Corni-
gans outside of a mosque in New Haven. Although the
two men were not acquainted, the defendant confessed
to Cornigans that he had killed his girlfriend by shooting
her, and asked for money so that he could leave the
state. Cornigans refused to give the defendant any
money, but agreed to drive him home. The defendant
instead directed Cornigans to drive him by the victim’s
apartment on Woolsey Street. Shortly thereafter, Corni-
gans returned the defendant to the mosque. Later that
night, Cornigans reported to the police what the defen-
dant had told him about killing his girlfriend. The police
went to the victim’s apartment and discovered her body.
The defendant turned himself in to the police the follow-
ing day.
The defendant was arrested and charged with murder
in violation of § 53a-54a (a),1 and carrying a pistol or
revolver without a permit in violation of § 29-35 (a). At
trial, the defendant testified and admitted that he shot
the victim. He claimed, however, that the gun had fired
accidentally. The jury found the defendant guilty of
both charges. The court subsequently sentenced him
to a total effective term of sixty years in prison. This
appeal followed.
The defendant claims that he was deprived of his
constitutional right to a fair trial because the prosecutor
committed numerous acts of impropriety during closing
and rebuttal argument. Specifically, the defendant
argues that the prosecutor argued facts not in evidence
and attempted to appeal to the jury’s emotions by (1)
mischaracterizing the testimony of the state’s firearms
expert; (2) comparing the amount of force required to
depress the trigger on the defendant’s revolver to that
required to lift a five pound bag of sugar; (3) mischarac-
terizing the evidence regarding the defendant’s DNA
submission on a buccal swab to the police so that it
would appear that the defendant did not volunteer to
provide the swab; (4) arguing that a verdict of not guilty
implied that the victim deserved to die; (5) arguing that
the defendant was attempting to place the victim on
trial; (6) characterizing the victim’s murder as an ‘‘exe-
cution’’; (7) inappropriately using sarcasm; and (8) mak-
ing other statements that served no purpose other than
to evoke sympathy for the victim.2 The defendant did
not object to any of these claimed improprieties at the
times that they occurred.
The state argues that none of the prosecutor’s
remarks were improper. Alternatively, the state con-
tends that even if any of the prosecutor’s comments
were improper, they did not, either individually or
cumulatively, deprive the defendant of a fair trial.
We conclude that at least some of the prosecutor’s
remarks during final argument were improper. We fur-
ther conclude, however, that the prosecutor’s improper
comments did not deprive the defendant of his right to
a fair trial.
I
IMPROPRIETY
The standard of review governing claims of prosecu-
torial impropriety is well established. ‘‘In analyzing
claims of prosecutorial impropriety, we engage in a two
step analytical process. . . . The two steps are sepa-
rate and distinct. . . . We first examine whether prose-
cutorial impropriety occurred. . . . Second, if an
impropriety exists, we then examine whether it
deprived the defendant of his due process right to a
fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Citations
omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978
(2007). ‘‘[If] a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden
is on the defendant to show . . . that the remarks were
improper . . . .’’ (Internal quotation marks omitted.)
State v. Taft, 306 Conn. 749, 762, 51 A.3d 988 (2012).
‘‘Because the claimed prosecutorial [improprieties]
occurred during closing arguments, we advance the
following legal principles. [P]rosecutorial [impropriety]
of a constitutional magnitude can occur in the course
of closing arguments. . . . In determining whether
such [an impropriety] has occurred, the reviewing court
must give due deference to the fact that [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from.’’ (Internal quotation marks omitted.) State v.
Miller, 128 Conn. App. 528, 535, 16 A.3d 1272, cert.
denied, 301 Conn. 924, 22 A.3d 1279 (2011).
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence [on] jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks [for]
no conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. [Although] the privilege
of counsel in addressing the jury should not be too
closely narrowed or unduly hampered, it must never
be used as a license to state, or to comment [on], or
to suggest an inference from, facts not in evidence, or
to present matters which the jury ha[s] no right to
consider.’’ (Internal quotation marks omitted.) State v.
Maguire, 310 Conn. 535, 553–54, 78 A.3d 828 (2013).
Finally, although the defendant failed to object at
trial to the remarks that form the basis of his appeal,
our Supreme Court has explained that a ‘‘defendant’s
failure to object at trial to each of the occurrences that
he now raises as instances of prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of
his claims. . . . This does not mean, however, that the
absence of an objection at trial does not play a signifi-
cant role in the determination of whether the challenged
statements were, in fact, improper. . . . To the con-
trary, we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time. . . . With
this maxim in mind, we proceed with our review of the
defendant’s claim[s].’’ (Internal quotation marks omit-
ted.) State v. Medrano, 308 Conn. 604, 612–13, 65 A.3d
503 (2013).
A
The defendant first claims that the prosecutor
improperly mischaracterized the testimony of the
state’s firearms expert, James Stephenson, during clos-
ing and rebuttal argument. More specifically, the defen-
dant claims that the prosecutor improperly asserted on
several occasions that Stephenson had testified that
the defendant’s revolver would not have fired in the
absence of a ‘‘purposeful’’ pull of its trigger. The defen-
dant contends that these assertions were improper
because Stephenson never testified to that effect. The
state argues that the prosecutor did not mischaracterize
Stephenson’s testimony, but instead properly urged the
jury to draw from it the reasonable inference that the
defendant’s gun would not have fired unless its trigger
had been deliberately pulled. We agree with the
defendant.
The following facts are relevant to our resolution
of this claim. In its case-in-chief, the state presented
testimony from Stephenson regarding the operation of
the defendant’s revolver. During the state’s direct exam-
ination of Stephenson, the following exchange
occurred:
‘‘[The Prosecutor]: Talking about the single action
again, Mr. Stephenson, with the hammer pulled back,
if an individual was holding the gun, and just waving
it around, without more, would that cause the gun to
fire a bullet?
‘‘[Stephenson]: It requires a force placed upon that
trigger to cause it to fire. If the person doesn’t have
their finger on the trigger, if the gun is—if you were to
hold the gun in a fashion where, as explained in single
action, if my hand were back here, and I was just waving
it around, it’s not going to fire. It requires that pressure
placed against that trigger to cause it to fire.
‘‘[The Prosecutor]: Is the pressure pulling it back-
ward purposely?
‘‘[Defense Counsel]: Objection, Your Honor. Again,
to the characterization purposely or not, that’s a conclu-
sion that I think ultimately is going to go to this jury.
That’s not appropriate.
‘‘[The Court]: Are you claiming it?
‘‘[The Prosecutor]: No, I’ll withdraw it.’’
The prosecutor continued to question Stephenson,
but did not raise the question that prompted defense
counsel’s objection again.
Subsequently, during closing argument, the prosecu-
tor recollected Stephenson’s testimony as follows: ‘‘The
evidence shows, James Stephenson, the ballistics
expert, he indicated that [he] and other ballistics
experts, who check and recheck each other’s work,
examined this gun, and he stated, based on years of
experience, and examining thousands of guns, this gun
does not just go off, as the defendant claimed, it requires
a purposeful trigger pull of between five pounds and
seven and a half pounds.’’ (Emphasis added.) Later, in
her rebuttal argument, the prosecutor stated: ‘‘Mr.
James Stephenson, ballistics expert, he told you, ladies
and gentlemen of the jury, the gun is safe, don’t worry,
that this gun does not just go off. It takes a purposeful
action, a real pull.’’ (Emphasis added.) The prosecutor
further stated: ‘‘I know a couple of you indicated on
voir dire that you shot guns, you are familiar with guns,
perhaps many of you are not, however; this is, if you
will, the smoking gun. If the injury to her head, the
conduct leading up to that night, his conduct after, and
all of the information that you have is not enough to
prove intent to prove murder, then you will know when
he fired this gun because, as Mr. Stephenson eloquently
put it, it takes a purposeful pull back, it does not go
off. We asked him, if you are shaking the gun around,
waving the gun around, even if you have your finger
on the trigger, it doesn’t go off. No, they tested the gun,
there was no malfunction with it. They test fired it at
the laboratory. In order for this to discharge a bullet,
it takes a very deliberate purposeful act.’’ (Emphasis
added.)
‘‘In fulfilling his duties, a prosecutor must confine
the arguments to the evidence in the record. . . . State-
ments as to facts that have not been proven amount to
unsworn testimony that is not the subject of proper
closing argument.’’ (Citation omitted.) State v. Copas,
252 Conn. 318, 349, 746 A.2d 761 (2000). ‘‘[Although]
the privilege of counsel in addressing the jury should
not be too closely narrowed or unduly hampered, it
must never be used as a license to state, or to comment
[on], or to suggest an inference from, facts not in evi-
dence, or to present matters which the jury ha[s] no
right to consider.’’ (Internal quotation marks omitted.)
State v. Maguire, supra, 310 Conn. 553–54. ‘‘Moreover,
when a prosecutor suggests a fact not in evidence, there
is a risk that the jury may conclude that he or she
has independent knowledge of facts that could not be
presented to the jury.’’ State v. Singh, 259 Conn. 693,
718, 793 A.2d 226 (2002).
We agree with the defendant that the prosecutor’s
comments during closing and rebuttal argument were
improper. Our review of the record reveals no instance
where Stephenson opined that the defendant’s revolver
could not have fired without a ‘‘purposeful’’ pull of its
trigger. Although the prosecutor attempted to elicit that
testimony from Stephenson during direct examination,
defense counsel timely objected to the prosecutor’s
question on the ground that the answer went to the
ultimate issue of the defendant’s mental state, and the
prosecutor withdrew the question without raising it
again. Consequently, Stephenson never rendered an
opinion on that issue, and the prosecutor’s assertions to
the contrary constituted unsworn testimony improperly
put before the jury.
The state contends that the prosecutor simply urged
the jury, on the basis of Stephenson’s testimony, to
draw a reasonable inference regarding the defendant’s
mental state. We find this contention unpersuasive. It
is true that ‘‘a prosecutor may argue the state’s case
forcefully, [provided the argument is] fair and based
upon the facts in evidence and the reasonable infer-
ences to be drawn therefrom’’; (internal quotation
marks omitted) State v. Miller, supra, 128 Conn. App.
535; but the prosecutor’s remarks in the present case
went beyond merely encouraging the jury to draw an
inference. Here, the prosecutor prefaced her repeated
assertions regarding the content of Stephenson’s testi-
mony with phrases such as, ‘‘he stated,’’ ‘‘he told you,’’
and ‘‘as Mr. Stephenson eloquently put it . . . .’’ Thus,
rather than encourage the jury to draw an inference
from Stephenson’s testimony, these phrases communi-
cated that the prosecutor was recollecting actual state-
ments made by Stephenson. See State v. Sargent, 87
Conn. App. 24, 40, 864 A.2d 20 (use of prefatory phrase
‘‘ ‘indicated to you’ ’’ conveyed to jury that prosecutor
was recollecting actual testimony from witness), cert.
denied, 273 Conn. 912, 870 A.2d 1082 (2005). Although
a prosecutor is free to advance conclusions reasonably
supported by the evidence, he or she may not use clos-
ing argument to place words in the mouth of a witness
that were never spoken. Because we find no factual
basis in the record for the prosecutor’s comments
regarding Stephenson’s testimony, we agree with the
defendant that those remarks constitute prosecu-
torial impropriety.
B
With respect to the other challenged remarks made
by the prosecutor during closing and rebuttal argument,
we conclude that it is not necessary to review each of
these statements individually. We reach this conclusion
because we agree with the state, for the reasons we
will set forth, that even if they were improper, these
remarks, and the prosecutor’s mischaracterization of
Stephenson’s testimony, did not either individually or
together deprive the defendant of a fair trial. See State
v. Baltas, 311 Conn. 786, 827, A.3d (2014) (reach-
ing second step of prosecutorial impropriety analysis
by assuming, arguendo, that prosecutor’s remarks
were improper).
II
DUE PROCESS
The legal principles that guide the second step of our
analysis are also well established. ‘‘[T]he touchstone of
due process analysis in cases of alleged prosecutorial
[impropriety] is the fairness of the trial, and not the
culpability of the prosecutor. . . . The issue is whether
the prosecutor’s conduct so infected the trial with
unfairness as to make the resulting conviction a denial
of due process. . . . [M]oreover . . . [a defendant is
not entitled to prevail if] the claimed [impropriety] was
not blatantly egregious and merely consisted of isolated
and brief episodes that did not reveal a pattern of con-
duct repeated throughout the trial. . . . In determining
whether the defendant was denied a fair trial [by virtue
of prosecutorial impropriety] we must view the prose-
cutor’s comments in the context of the entire trial. . . .
The question of whether the defendant has been preju-
diced by prosecutorial [impropriety], therefore,
depends on whether there is a reasonable likelihood
that the jury’s verdict would have been different absent
the sum total of the improprieties.’’ (Citation omitted;
internal quotation marks omitted.) State v. Gordon, 104
Conn. App. 69, 81, 931 A.2d 939, cert. denied, 284 Conn.
937, 937 A.2d 695 (2007).
‘‘[O]ur determination of whether any improper con-
duct by the state’s attorney violated the defendant’s fair
trial rights is predicated on the factors set forth in State
v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)],
with due consideration of whether that [impropriety]
was objected to at trial. . . . These factors include the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s case.
. . . [If] a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden
is on the defendant to show, not only that the remarks
were improper, but also that, considered in light of the
whole trial, the improprieties were so egregious that
they amounted to a denial of due process.’’ (Internal
quotation marks omitted.) State v. Thompson, 146
Conn. App. 249, 267–68, 76 A.3d 273, cert. denied, 310
Conn. 956, 81 A.3d 1182 (2013).
We begin by assessing the severity of the claimed
improprieties underlying the defendant’s claim. Even if
we assume, without deciding, that each claimed impro-
priety occurred in the manner that the defendant
describes, we conclude that none of them, considered
in light of the whole trial, were particularly egregious.
In reaching this conclusion, ‘‘we consider it highly sig-
nificant that defense counsel failed to object to any of
the improper remarks, request curative instructions, or
move for a mistrial. Defense counsel, therefore, presum-
ably [did] not view the alleged impropriety as prejudicial
enough to seriously jeopardize the defendant’s right to
a fair trial. . . . Given the defendant’s failure to object,
only instances of grossly egregious misconduct will be
severe enough to mandate reversal.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.)
State v. Thompson, 266 Conn. 440, 479–80, 832 A.2d 626
(2003). Thus, even if we assume that the prosecutor’s
remarks strayed across the line dividing proper and
improper argument, we conclude that the severity of
each impropriety was low and unlikely to have preju-
diced the defendant.
We next assess the frequency of the claimed prosecu-
torial improprieties. In the present case, the claimed
improprieties were not pervasive throughout the trial,
but were confined to, and constituted only a small por-
tion of, closing and rebuttal argument, a part of the
trial ‘‘where we typically allow some latitude . . . .’’
State v. Camacho, 282 Conn. 328, 383, 924 A.2d 99, cert.
denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273
(2007). Therefore, we weigh this factor in favor of
the state.
Turning next to the strength of the curative measures
adopted, we note that the court did not give curative
instructions directed specifically to any of the claimed
prosecutorial improprieties underlying the defendant’s
appeal. Nevertheless, ‘‘the defendant, by failing to bring
them to the attention of the trial court, bears much
of the responsibility for the fact that these claimed
improprieties went uncured. We emphasize the respon-
sibility of defense counsel, at the very least, to object
to perceived prosecutorial improprieties as they occur
at trial, and we continue to adhere to the well estab-
lished maxim that defense counsel’s failure to object
to the prosecutor’s argument[s] . . . when [they were]
made suggests that defense counsel did not believe that
[they were] unfair in light of the record of the case at
the time. . . . Moreover . . . defense counsel may
elect not to object to arguments . . . that he or she
deems marginally objectionable for tactical reasons,
namely, because he or she does not want to draw the
jury’s attention to [them] or because he or she wants
to later refute that argument . . . . The same princi-
ples hold true in regard to requests for special instruc-
tions. The failure by the defendant to request specific
curative instructions frequently indicates on appellate
review that the challenged instruction did not deprive
the defendant of a fair trial.’’ (Citation omitted; internal
quotation marks omitted.) State v. Stevenson, 269 Conn.
563, 597–98, 849 A.2d 626 (2004).
Moreover, although not addressed by specific cura-
tive instructions, we conclude that the improper effect
of any instances of claimed prosecutorial impropriety
raised in this appeal was diminished by the court’s
general instructions to the jury following closing argu-
ment. In those instructions, the court emphasized that
arguments made by counsel during the course of the
trial were not evidence. See id., 598 (‘‘even though the
trial court gave no specific curative instructions, the
court reminded the jury in its general instructions, both
prior to trial and again following final argument, that
‘what the lawyers may have said to you in argument
about the facts is not testimony or evidence’ ’’); State
v. Mucha, 137 Conn. App. 173, 201, 47 A.3d 931
(‘‘although the trial court did not give specific instruc-
tions directed at the misconduct, we conclude that the
court’s general instructions, which instructed the jury
that arguments by counsel are not evidence, adequately
addressed the improper remarks’’), cert. denied, 307
Conn. 912, 53 A.3d 998 (2012). Additionally, the court
stressed that expressions of personal opinion and
appeals to emotions by counsel were improper, and
that the jury was to base its verdict solely on the evi-
dence before it, without regard to its personal biases,
prejudices, and sympathies.3 ‘‘In the absence of a show-
ing that the jury failed or declined to follow the court’s
instructions, we presume that it heeded them.’’ (Internal
quotation marks omitted.) State v. Thompson, supra,
266 Conn. 485. Accordingly, we weigh this factor in
favor of the state.
We turn next to the strength of the state’s case, which
we conclude was strong. The defendant testified at trial
and admitted to shooting the victim. In doing so, his
testimony satisfied the state’s burden to prove that he
caused the victim’s death. Consequently, the only ele-
ment of the offense of murder remaining in dispute was
whether the defendant shot the victim with the intent to
cause her death. With respect to that issue, we conclude
that the state adduced compelling evidence from which
the jury could have found that the defendant intended to
kill the victim. Specifically, the state presented evidence
that the defendant and the victim were involved in a
tumultuous relationship, that the defendant believed
the victim had arranged for two of her male acquain-
tances to assault him, that he purchased a revolver for
the purpose of killing these two men, and that immedi-
ately before shooting the victim in the head, he asked
her, ‘‘are you trying to set me up?’’ Moreover, the state
presented evidence that the defendant did not summon
help for the victim after shooting her, but instead left
the apartment, locked the door behind him, and fled
to Waterbury, where he socialized at a nightclub with
another individual.
The defendant claims that the state’s case was weak
because a number of factors suggested the possibility
that the shooting was accidental. Specifically, the defen-
dant claims, inter alia, that he was intoxicated on
ecstasy and PCP at the time of the shooting, that he
had no firearms training, that the revolver was held
together by tape, and that the fatal gunshot was not
fired at close range. Assuming for purposes of argument
the truth of these assertions, we do not believe that
any of these facts so significantly weakened the state’s
case such that the jury was required to disregard the
powerful evidence establishing that the defendant acted
intentionally when he shot the victim. Moreover, ‘‘our
Supreme Court has never stated that the state’s evi-
dence must have been overwhelming in order to support
a conclusion that prosecutorial [impropriety] did not
deprive the defendant of a fair trial.’’ (Internal quotation
marks omitted.) State v. Medrano, 131 Conn. App. 528,
555–56, 27 A.3d 52 (2011), aff’d, 308 Conn. 604, 65 A.3d
503 (2013). Accordingly, because the state’s case was
both strong and persuasive, we weigh this factor in
its favor.
Finally, we conclude that the remaining two Williams
factors—the centrality of the improprieties to the criti-
cal issues in the case, and the extent to which the
claimed improprieties were invited by defense counsel’s
conduct or argument—weigh in favor of the defendant.
The prosecutor’s repeated assertions that Stephenson
had testified that the defendant’s gun would not have
fired unless its trigger was pulled purposefully impli-
cated the critical issue of the defendant’s mental state
at the time of the killing. Moreover, we can identify no
conduct or argument by defense counsel during the
pendency of the trial that can reasonably be said to
have invited any of the improprieties claimed by the
defendant.
Nevertheless, in light of the strength of the state’s
case, the lack of objection to the claimed improprieties
identified by the defendant, which were neither perva-
sive nor severe, and the court’s general instructions to
the jury, we are not persuaded that ‘‘there is a reason-
able likelihood that the jury’s verdict would have been
different absent the sum total of the [prosecutor’s]
improprieties.’’ (Internal quotation marks omitted.)
State v. Gordon, supra, 104 Conn. App. 81. Accordingly,
we conclude that the defendant was not deprived of
his right to a fair trial by prosecutorial impropriety.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person or of a third person . . . .’’
General Statutes § 53a-3 (11) provides: ‘‘A person acts ‘intentionally’ with
respect to a result or to conduct described by a statute defining an offense
when his conscious objective is to cause such result or to engage in such
conduct . . . .’’
2
As explained subsequently in this opinion, we limit our analysis of
whether the prosecutor’s remarks were improper to the first instance of
impropriety claimed by the defendant. Even so, for completeness, we briefly
describe herein the factual basis and arguments underlying each of the
defendant’s claims of prosecutorial impropriety.
With respect to the second claimed impropriety, the defendant contends
that it was improper for the prosecutor to state during closing argument:
‘‘[J]ust think about this: A five pound bag of sugar, we’ve all bought them,
think of the substance of it, the weight of it; that is the least amount it
requires for a purposeful pull of that trigger. Guns do not just go off.’’
The defendant argues that this statement was improper because the state’s
firearms expert, although testifying as to the pounds of pressure needed to
pull the revolver’s trigger, had not testified that the effort to pull the trigger
on the defendant’s revolver was similar to that required to lift a five pound
bag of sugar.
Regarding the third claimed impropriety, the defendant argues that it
was improper for the prosecutor to state during rebuttal argument: ‘‘[The
defendant] went [to the New Haven Police Department], and he didn’t give
his buccal swabs voluntarily . . . I’m sure they explained to him as part
of the procedure, we’ll just have to get a search warrant. It’s not like he
was volunteering.’’ The defendant argues that this remark was improper
because it was not based on evidence in the record—namely, the testimony
of the detective who interviewed the defendant—but on the prosecutor’s
personal knowledge of police procedures.
As to the fourth and fifth claimed improprieties, the prosecutor stated
during rebuttal argument: ‘‘And you know what? Sholanda is not on trial
here. Whether she had a drug problem or an eating disorder, Sholanda is
not on trial. This young lady, twenty-nine years old, had her life taken
away for no reason.’’ The prosecutor later stated: ‘‘Whether she had a drug
problem, to even get into that sort of revictimizes her. She did nothing to
deserve this. She had every right, like any one of us, to live her life.’’
The prosecutor further stated: ‘‘This young lady did not deserve that.’’ The
defendant contends that these remarks improperly appealed to the jury’s
emotions by (1) implying that if the jury found the defendant not guilty, it
would be concluding that the victim deserved to die, and (2) placing the
victim on trial.
With regard to the sixth claimed impropriety, the defendant argues that
in light of evidence indicating that the gunshot was fired from across the
room, it was improper for the prosecutor to characterize the victim’s death
as an ‘‘execution’’ at several points during the state’s closing and rebuttal
arguments.
The defendant contends that the seventh instance of prosecutorial impro-
priety occurred when the prosecutor stated, while referring to the defen-
dant’s defense: ‘‘Now, this gun just magically happens to go off . . . .’’ The
prosecutor further stated: ‘‘Oops, the gun just went off. Not, I’m accountable
and I’m grieving, oops.’’ The prosecutor also stated: ‘‘Oh, yeah, so this gun
just happens to go off, and it hits her right here.’’ Finally, the prosecutor
stated: ‘‘Grief? He didn’t care.’’ The defendant argues that these statements
constituted an improper use of sarcasm during closing argument.
Finally, as to the eighth claimed impropriety, the defendant argues that
the prosecutor made several statements that served no purpose other than
to evoke sympathy for the victim. Specifically, the defendant claims that it
was improper for the prosecutor to state during closing argument: ‘‘[Defense
´
counsel] asked [the fiance of the victim’s father], you didn’t call the police?
She said no. I wonder how she feels about that now.’’ The defendant claims
that it was also improper for the prosecutor to state: ‘‘Sholanda’s voice has
been forever silenced by this man, but listen to her body.’’
3
In its charge to the jury, the court stated: ‘‘Now, you are the sole judges
of the facts. It is your duty to find the facts. You are to recollect and weigh
the evidence, and form your own conclusions as to what the ultimate facts
are and determine where the truth lies. You may not go outside the evidence
introduced in court to find the facts. This means that you may not resort
to guesswork, conjecture or suspicion, and you must not be influenced by
any personal likes or dislikes, opinions, prejudices or sympathy. . . .
‘‘Now, at the conclusion of all the evidence, each attorney has had the
opportunity to present a summation to you. Closing arguments are intended
to assist you in understanding the evidence and the contentions of the parties
in this case. Arguments by counsel are not evidence. The law prohibits either
the State’s Attorney or defense counsel from giving personal opinions as to
whether the defendant is guilty or not guilty. It is not their assessment of
the evidence that matters, it is only yours. . . .
‘‘Certain things are not evidence, and you may not consider them in
deciding what the facts are. These include the following: So, I’m going to
give you examples, ladies and gentlemen, of what is not evidence. Arguments
and statements by lawyers. The lawyers are not witnesses. What they have
said in their closing arguments is intended to help you interpret the
evidence, but it is not evidence. If the facts as you remember them differ
from the way the lawyers have stated them, it is your memory that controls.
It is not proper for attorneys to express their opinions on the ultimate
issue in this case or appeal to your emotions.
***
‘‘You should not be concerned in any way with the punishment to be
imposed in this case in the event of a conviction. This is a matter exclusively
within my function under the limitations and restrictions imposed by statute.
You are to find the facts of guilt or nonguilt of the accused uninfluenced
by the probable punishment or consequences which follow conviction. Nor
should you be influenced by any sympathy for [the defendant], his family
and friends, or for the family and friends of Sholanda Joyner, or any other
person who might be in any way affected by your decision.’’ (Emphasis
added.)