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STATE OF CONNECTICUT v. CARL SMALL
(AC 40238)
Lavine, Sheldon and Bear, Js.
Syllabus
Convicted of the crimes of murder, burglary in the first degree, larceny in
the third degree, larceny in the fourth degree, stealing a firearm, criminal
possession of a firearm, sale of narcotics and possession of narcotics,
the defendant appealed. The defendant had sold ecstasy pills to the
victim at the victim’s apartment, where the victim kept a collection of
firearms and knives. When the victim came to suspect that he had been
sold a substandard product, he told a friend that he intended to meet
with the defendant to either obtain new ecstasy pills or to get his money
back. Shortly thereafter, the victim’s body was found in his apartment.
The victim had been stabbed to death, and his firearms and other posses-
sions were missing from the apartment. A bloodied mop was found in
the bathroom of the apartment, and a bloody fingerprint was found on
a window latch in the bathroom. A knife that belonged to the victim
also was found in the home of L, where the defendant had gone on the
night of the murder, and the defendant communicated on Facebook
with R, a member of a national street gang, seeking to sell R one of the
victim’s guns. The trial court denied the defendant’s motion in limine
to preclude an agent with the Federal Bureau of Investigation (FBI)
from testifying about criminal gangs and the defendant’s Facebook com-
munications with R. On appeal, the defendant claimed, inter alia, that
the trial court abused its discretion in admitting certain evidence about
criminal gangs. Held:
1. The trial court did not abuse its discretion in allowing the FBI agent to
testify about R’s gang involvement; R’s gang affiliation, if credited by
the jury, was probative of the defendant’s identity as the perpetrator of
the victim’s murder on the basis of his desire to sell the victim’s firearms
through various means in the aftermath of the murder, and the probative
value of the FBI agent’s testimony was not outweighed by any unfair
prejudice to the defendant, as there was no allegation that the defendant
was a gang member, and the FBI agent’s testimony demonstrated only
R’s gang involvement.
2. The defendant could not prevail on his claim that certain improprieties
by the prosecutor during her closing arguments to the jury violated his
right to a fair trial:
a. This court declined to review the defendant’s unpreserved evidentiary
claim that the prosecutor improperly elicited false scientific evidence
and commented on such evidence during closing argument when she
allegedly argued that the random match probability, which is the proba-
bility that a member of the general population would share the same
DNA with the defendant, was the same as the source probability, which
is the probability that someone other than the defendant was the source
of the DNA that was found on the mop; the claim was purely evidentiary
in nature and the defendant could not transform an unpreserved eviden-
tiary claim into one of prosecutorial impropriety to obtain review of
the claim, and, nevertheless, the prosecutor’s comment referred to facts
in evidence and was not improper.
b. Certain remarks by the prosecutor that DNA from two individuals
was present on the mop handle and that the defendant was the last
person to touch the mop were not improper because they were based
on evidence and testimony from a forensic science examiner that the
defendant and the victim could not be ruled out as contributors to that
DNA, and the prosecutor’s argument that the defendant had touched
the window latch in the bathroom was not unduly speculative, as it was
based on evidence adduced at trial.
c. The prosecutor did not improperly offer her personal opinion, make
inflammatory statements or vouch for the credibility of certain witnesses
during closing argument; the prosecutor’s statement that she was ‘‘guess-
ing’’ that the victim let the defendant enter his apartment was not
improper and was based on the evidence presented, the prosecutor’s
remark that it was odd that the defendant would ask a friend to throw
away the defendant’s freshly laundered jeans was an appeal to the jury’s
common sense and life experiences, and the prosecutor did not vouch
for the credibility of certain witnesses when she commented about the
defendant’s disregard for the safety of children relative to the knife that
was found in L’s home, as her remarks were in response to those
made during defense counsel’s argument to the jury, and were based
on evidence that the victim died from stab wounds and that there were
children in L’s residence where her minor son found the knife.
3. The trial court did not abuse its discretion when it denied the defendant’s
motion for a new trial, in which he alleged that the state’s allegedly late
disclosure to him of certain discovery materials deprived him of his due
process rights under Brady v. Maryland (373 U.S. 83); the materials at
issue were not suppressed within the meaning of Brady, as the evidence
was disclosed prior to the start of evidence, and the defendant failed
to establish how he was prejudiced, as he had the opportunity to cross-
examine the witnesses to whom the discovery pertained and he failed
to move to recall the witnesses to testify or to request a continuance.
Argued December 6, 2017—officially released April 3, 2018
Procedural History
Substitute information charging the defendant with
the crimes of burglary in the first degree, murder, lar-
ceny in the third degree, larceny in the fourth degree,
stealing a firearm, criminal possession of a firearm, sale
of narcotics and possession of narcotics, brought to
the Superior Court in the judicial district of Hartford
and tried to the jury before Bentivegna, J.; thereafter,
the court denied the defendant’s motion to preclude
certain evidence; verdict of guilty; subsequently, the
court denied the defendant’s motion for a new trial and
rendered judgment in accordance with the verdict, from
which the defendant appealed. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Duby, assigned counsel, for
the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, Vicki Melchiorre, supervisory assistant state’s
attorney, and Elizabeth S. Tanaka, assistant state’s
attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Carl Small, was con-
victed, after a jury trial, of murder in violation of General
Statutes § 53a-54a (a), burglary in the first degree in
violation of General Statutes § 53a-101 (a) (2), larceny
in the third degree in violation of General Statutes § 53a-
124 (a) (1), larceny in the fourth degree in violation of
General Statutes § 53a-125 (a), stealing a firearm in
violation of General Statutes § 53a-212, criminal posses-
sion of a firearm in violation of General Statutes § 53a-
217 (a) (1), sale of narcotics in violation of General
Statutes § 21a-277 (a), and possession of narcotics in
violation of General Statutes § 21a-279 (a). On appeal,
the defendant claims that: (1) the trial court abused its
discretion in admitting evidence of criminal gangs; (2)
he was deprived of his constitutional right to a fair trial
by prosecutorial improprieties; and (3) the court abused
its discretion in denying his motion for a new trial. We
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. In June, 2012, the defendant lived in Bloomfield
with Lenionell Frost and Frost’s mother. Frost was a
customer at Sovereign Bank in West Hartford, where
he became acquainted with the victim, Christopher
Donato, a bank teller. On June 4, 2012, the defendant
and Frost visited the victim at his apartment in Hartford.
The victim had a collection of rifles, handguns, ammuni-
tion, knives, guitars and electronic equipment. The vic-
tim allowed the defendant and Frost to handle the guns.
The victim expressed an interest in obtaining ecstasy
pills, and the defendant indicated that he could assist
the victim.
Sometime thereafter, the victim gave the defendant
approximately one thousand dollars and, on June 8,
2012, the defendant and Frost returned to the victim’s
apartment. During the visit, the defendant gave the vic-
tim a bag of ecstasy pills. The defendant asked the
victim if he could borrow one of his guns, and the victim
replied in the negative. After the defendant and Frost
left the apartment, the victim showed the ecstasy pills
to his girlfriend, Katherine Robert, and informed her
that he intended to sell them.
On June 11, 2012, the victim told his college friend,
Andrew Zippin, that he had purchased ecstasy pills and
suspected that the seller had sold him a substandard
product. After testing some of the pills, Zippin agreed
with the victim’s assessment. Sometime thereafter, the
victim informed Zippin that he was meeting with the
defendant in order either to obtain new ecstasy pills
or to get his money back.
On June 16, 2012, the victim called Robert, and the
two agreed that Robert would visit the victim at his
apartment at approximately 6 p.m. or 7 p.m. that night.
Cell phone records indicate that the last phone call the
victim made to Robert from his cell phone was at 3:12
p.m. The victim’s father sent a text message to him at
5:33 p.m., and the victim replied. Robert arrived at the
rear parking lot of the apartment building where the
victim lived at 7:15 p.m. Robert called and sent a text
message to the victim, but did not receive a response.
When Robert did not find a key under the doormat
to the victim’s apartment as the two previously had
arranged, she knocked on the door. When the victim
failed to respond, Robert banged on the door and
screamed to the victim to let her in. At 7:29 p.m., when
Robert was outside the victim’s apartment, she received
a text message from the victim’s phone stating that he
had walked to a store, was ‘‘2 messed up 2 drive,’’ and
asking her to ‘‘plz’’ pick him up at the corner of Prospect
Avenue and Kane Street. Robert thought it was unusual
that the text contained the abbreviation ‘‘plz,’’ which
the victim did not use in text messages, and that the
victim had walked to the store because the victim was
unwilling to walk distances as a result of constant pain
he experienced due to scoliosis.
Robert walked to her car and received another text
message from the victim’s cell phone, at 7:31 p.m., ask-
ing her location. Robert replied that she was coming
to get him. Robert drove to the designated location, but
could not locate the victim. Robert sent a text message
to the victim’s cell phone numerous times and received
no response. Robert returned to the victim’s apartment
building, but returned home when she noticed that the
victim’s car, which had been in the parking lot when
she left to find the victim, was gone. At 9 p.m., the
victim’s neighbor noticed red shoe treads on the com-
mon hallway floor.
That evening, the defendant arrived at Lechaun Mil-
ton’s residence in Hartford with a duffle bag. He asked
Milton if she had ammonia to clean a gun and inquired
whether she knew someone who wanted to buy a gun.
Milton responded in the negative to both questions. The
defendant left on foot and arrived on Vine Street at the
nearby house of Milton’s sister, Latasha Drummond, at
about sunset. While he was there, Latasha Drummond
noticed that he was pacing, appeared nervous, and
made several phone calls. When Latasha Drummond
asked the defendant why he was bleeding, he explained
that he had cut his hand. At 8:44 p.m., the defendant
used his cell phone to call Felix Rodriguez, a ranking
member of the Bronx, New York chapter of the national
street gang, the Bloods. At about 9:45 p.m., the defen-
dant called Frost and asked Frost to drive him home.
Upon returning to his Bloomfield residence, the defen-
dant told Frost that he needed to take a shower and to
change his clothes. The defendant borrowed a pair of
Frost’s sneakers. Frost drove the defendant to a shop-
ping center in Bloomfield, where the defendant wanted
to take a bus to Hartford so that he could return to
Vine Street.
The following morning, the defendant telephoned
Frost and asked him to launder his black jeans, then
place them in the trash. The defendant arrived at Shanell
Milner’s residence in Hartford with a bag containing
guns, bullets, knives, laptops and headphones. He asked
Milner if she knew anyone who might be interested in
purchasing the items, and Milner responded that she
did not.
The victim did not report for work the following
Monday, June 18, 2012, nor did he respond to text mes-
sages or phone calls from the bank manager. The police
went to the victim’s apartment at the request of his
parents. The police found bloody shoe prints on the
hallway floor and the victim’s body in his apartment.
The victim had died from multiple stab wounds to his
torso. The apartment appeared to be ransacked, and the
victim’s firearms and other possessions were missing.
There was a bloodied Swiffer mop in the bathtub and a
bloody fingerprint on the latch of the bathroom window.
DNA testing of the blood on the latch eliminated the
victim as a contributor but was not sufficient to include
or exclude the defendant as a contributor. The following
day, the police found the victim’s car near Vine Street.
DNA testing of bloodstains on the steering wheel and
the interior latch of the driver’s door matched the defen-
dant’s DNA profile. The expected frequency of individu-
als who could be a contributor of DNA to the
bloodstains was less than 1 in 7 billion.
On June 19, 2012, Latasha Drummond’s boyfriend,
Andrew Rison, noticed that the defendant was carrying
a bag and saw that the defendant’s hand was injured.
When Rison asked the defendant, who appeared ner-
vous, what was wrong, the defendant replied that he
‘‘had to fuck up this cracker real bad’’ and mentioned
a robbery. The defendant then asked Rison if he knew
anyone who wanted to purchase a gun.
The defendant spent the evening of June 20, 2012, at
Milner’s residence. The defendant told Milner that he
‘‘caught a body,’’ which Milner understood to mean that
he had killed someone. That evening, the defendant
communicated on Facebook with Rodriguez. The Face-
book messages between the defendant and Rodriguez
at that time concerned guns, money, and ecstasy.
The defendant was arrested on June 28, 2012, in Phila-
delphia, Pennsylvania. He thereafter was charged with
murder in violation of § 53a-54a (a), burglary in the first
degree in violation of § 53a-101 (a) (2), larceny in the
third degree in violation of § 53a-124 (a) (1), larceny in
the fourth degree in violation of § 53a-125 (a), stealing
a firearm in violation of § 53a-212, criminal possession
of a firearm in violation of § 53a-217 (a) (1), sale of
narcotics in violation of § 21a-277 (a), and possession
of narcotics in violation of § 21a-279 (a). Following a
jury trial, the defendant was convicted of all charges.
The court imposed a total effective sentence of seventy
years incarceration. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that the court abused its
discretion in admitting certain evidence relating to the
Bloods. We disagree.
During the state’s case-in-chief, defense counsel filed
a motion in limine seeking to preclude Matthew King,
an agent with the Federal Bureau of Investigation, from
testifying about Rodriguez’ involvement with the
Bloods. The prosecutor argued that the state was not
making any claim that the defendant was a member of
the Bloods, but that the evidence would tend to show
that the defendant contacted an individual who as a
member of the Bloods might be interested in purchasing
guns. The court denied the motion, concluding that the
testimony was relevant and that its probative value
outweighed its prejudicial effect.
King testified that he had studied the Bloods for more
than three years and that during that time he had
become familiar with terminology used by the Bloods.
He testified that Rodriguez’ street name was ‘‘Murdaveli
Cokeboy Rollack,’’ which indicated that Rodriguez was
a member of the ‘‘sex, money, murder Bloods’’ based
in Bronx, New York, who were active in the south end
of Hartford. King explained that the Bloods use guns
to engage in criminal activity and that they obtain their
guns in any way they can. He defined certain slang
terminology used by the defendant and Rodriguez in
their Facebook communications. When questioned
about the defendant’s June 7, 2012 Facebook message
to Rodriguez, asking, ‘‘[g]ot anybody dat got skittles,’’
King explained that the word ‘‘skittles’’ referred to
ecstasy. King also clarified that when the defendant
informed Rodriguez on June 20, 2012, that: ‘‘I got to get
low but I need extra paper, mu,’’ and, ‘‘[t]ake this bag
of goodies off my hand for seven hundred,’’ ‘‘paper’’
was slang for money, ‘‘mu’’ meant blood, and ‘‘goodies’’
could be anything someone is trying to sell. The mes-
sages also discussed ‘‘DVDs,’’ which King explained
referred to guns.
The defendant argues that evidence of Rodriguez’
gang affiliation was irrelevant and highly prejudicial.
He contends that the state made no allegation and pre-
sented no evidence that he was a member of a gang,
and that Rodriguez’ gang affiliation was not relevant to
the jury’s understanding of slang terminology or to its
ultimate decision as to whether the defendant had mur-
dered the victim. The defendant argues that the gang
evidence was prejudicial in that it suggested that he
should be convicted because he was involved in gang
activity. We are not persuaded.
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . Evidence is relevant if it tends to make the exis-
tence or nonexistence of any other fact more probable
or less probable than it would be without such evidence.
. . . To be relevant, the evidence need not exclude all
other possibilities; it is sufficient if it tends to support
the conclusion [for which it is offered], even to a slight
degree. . . . All that is required is that the evidence
tend to support a relevant fact even to a slight degree, so
long as it is not prejudicial or merely cumulative. . . .
‘‘Although relevant, evidence may be excluded by the
trial court if the court determines that the prejudicial
effect of the evidence outweighs its probative value.
. . . Of course, [a]ll adverse evidence is damaging to
one’s case, but it is inadmissible only if it creates undue
prejudice so that it threatens an injustice were it to be
admitted. . . . The test for determining whether evi-
dence is unduly prejudicial is not whether it is damaging
to the defendant but whether it will improperly arouse
the emotions of the jury. . . . Reversal is required only
whe[n] an abuse of discretion is manifest or whe[n]
injustice appears to have been done.’’ (Citations omit-
ted; emphasis added; internal quotation marks omitted.)
State v. Wilson, 308 Conn. 412, 429–30, 64 A.3d 91 (2013).
In the present case, evidence of Rodriguez’ gang affili-
ation, if credited by the jury, was probative, at least to
a slight degree, as to the defendant’s identity as the
perpetrator on the basis of his desire to sell the victim’s
firearms through various means in the aftermath of
the murder and burglary. There was evidence that the
defendant, despite his inquiries to several of his friends,
was unable to find a potential gun buyer in the days
following the murder. On June 20, 2012, four days fol-
lowing the murder and before the defendant left the
state for Pennsylvania, he communicated with Rodri-
guez through Facebook. These communications indi-
cated that the defendant attempted to sell the victim’s
firearms to someone who was a member of the Bloods,
a gang that sought to obtain firearms however possible.
We also conclude that the court properly found that
the probative value of King’s testimony was not out-
weighed by any unfair prejudice to the defendant.
Despite the slight probative value of the evidence, there
was a limited risk of unfair prejudice. There was no
allegation that the defendant was a gang member. King’s
testimony demonstrated only Rodriguez’ gang involve-
ment. King testified on cross-examination that he was
making no claim that the defendant was a member
of any gang. During closing argument, the prosecutor
explained: ‘‘It’s not against the law for somebody to
talk to a gang member or gang leader. . . . It’s simply
evidence that he was trying to sell the guns to someone
he knew would likely be interested in buying them. . . .
We’re not claiming the defendant is a gang member.
We are not claiming you should convict him because
he is a gang member.’’ We conclude that the court did
not abuse its discretion in allowing King to testify as
to Rodriguez’ gang involvement.
II
The defendant next claims that his right to a fair trial
was violated by several prosecutorial improprieties.
We disagree.
‘‘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. . . . [If]
a defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show . . . that the remarks were
improper . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Ross, 151 Conn. App. 687, 693,
95 A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d 271,
272 (2014).
A
The defendant claims that the prosecutor committed
‘‘the prosecutor’s fallacy’’ by eliciting false scientific
evidence and commenting on such evidence during her
closing argument. We are not persuaded.
A prosecutor employs ‘‘the prosecutor’s fallacy’’ by
equating random match probability with source proba-
bility in relation to DNA evidence. ‘‘Random match
probability and source probability are distinguishable.
The prosecutor’s fallacy is the assumption that the ran-
dom match probability is the same as the probability
that the defendant was not the source of the DNA sam-
ple. . . . Random match probability is the probability
a member of the general population would share the
same DNA with the defendant. . . . Source probability
is the probability that someone other than the defendant
is the source of the DNA found at the crime scene.’’
(Citation omitted; internal quotation marks omitted.)
State v. Marrero-Alejandro, 159 Conn. App. 376, 383
n.3, 122 A.3d 272 (2015), appeal dismissed, 324 Conn.
780, 154 A.3d 1005 (2017).
This claim solely concerns DNA evidence present on
the handle of the bloodied Swiffer mop that the police
found in the victim’s bathtub and not the other DNA
evidence. Nicholas Yang, a state DNA forensic science
examiner, testified on direct examination that he com-
pared the ‘‘touch DNA’’ profile1 on the Swiffer mop
handle to the defendant’s known DNA profile and con-
cluded that the defendant could not be eliminated as
a contributor. He explained that the ‘‘expected fre-
quency of individuals who cannot be . . . eliminated
as a contributor to the DNA profile from [that] submis-
sion . . . is about one in 1300 in the African-American
population and about one in 1200 in both the Caucasian
and Hispanic populations.’’ The prosecutor inquired,
‘‘[a]nd does that also exclude more than 99.9 percent
of the population?’’ Yang replied, ‘‘99.9 something, yes.’’
Defense counsel did not object to the admission of
this evidence.
During closing argument, the prosecutor stated: ‘‘And
with regard to the calculation on the Swiffer mop . . .
you heard the calculation from Mr. Yang . . . it was
one in thirteen hundred, which sounds far less impres-
sive than 1 in 7 billion, but when you do the statistical
calculation excludes 99.9 percent of the population. So,
when you put that in context with all the other evidence,
ladies and gentlemen, you know that’s the defen-
dant’s DNA.’’
The defendant argues that the prosecutor elicited
scientifically false testimony from Yang that 99.9 per-
cent of the population was excluded and that the per-
centage testimony improperly equated random match
probability with source probability. He further argues
that the prosecutor engaged in impropriety during clos-
ing argument when she committed the prosecutor’s fal-
lacy by referring to Yang’s testimony. We are not
persuaded.
The defendant’s claim that the prosecutor elicited
scientifically false evidence through Yang is purely evi-
dentiary. The defendant did not object to the admission
of the evidence at issue. ‘‘Although our Supreme Court
has held that unpreserved claims of prosecutorial
impropriety are to be reviewed under the Williams
factors,2 that rule does not pertain to mere evidentiary
claims masquerading as constitutional violations. . . .
Evidentiary claims do not merit review pursuant to
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), because they are not of constitutional magni-
tude. . . . [A] defendant may not transform an unpre-
served evidentiary claim into one of prosecutorial
impropriety to obtain review of the claim.’’ (Citation
omitted; footnote added; internal quotation marks omit-
ted.) State v. Cromety, 102 Conn. App. 425, 431, 925
A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932
(2007); see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d
1188 (2015) (modifying third condition of Golding). We,
therefore, decline to review this unpreserved eviden-
tiary claim.
The prosecutor’s comment during closing argument
referred to facts in evidence and, therefore, was not
improper.3 ‘‘It is not . . . improper for the prosecutor
to comment upon the evidence presented at trial and
to argue the inferences that the jurors might draw there-
from . . . .’’ (Internal quotation marks omitted.) State
v. Luster, 279 Conn. 414, 435, 902 A.2d 636 (2006).
B
The defendant next claims that the prosecutor
engaged in impropriety when she relied on facts not in
evidence and invited sheer speculation. We disagree.
With respect to this issue, we note that ‘‘[a] prosecu-
tor may invite the jury to draw reasonable inferences
from the evidence; however, he or she may not invite
sheer speculation unconnected to evidence.’’ State v.
Singh, 259 Conn. 693, 718, 793 A.2d 226 (2002).
1
The defendant argues that the prosecutor made
improper remarks during rebuttal argument when she
stated that (1) DNA from only two individuals was on
the mop handle and (2) the defendant was the last
person to touch the mop handle. We disagree.
Yang testified that the Swiffer mop handle contained
a mixture of DNA and that neither the defendant nor
the victim could be eliminated as having contributed
to that mixture. Yang testified regarding the random
match probabilities that were consistent with the DNA
of the defendant and the victim, respectively. Defense
counsel argued during closing argument that the defen-
dant had visited the victim’s apartment multiple times
and that it was unclear when the defendant’s ‘‘touch
DNA’’ had been placed on the handle of the Swiffer mop.
During her rebuttal closing argument, the prosecutor
stated: ‘‘The last person to use that . . . Swiffer mop
was the killer. There were only two people’s DNA on
that mop handle, [the defendant and the victim]. So,
unless you think that [the victim] got up off the floor
after those three huge stab wounds and cleaned up his
own blood, that means that [the defendant] is the killer.’’
The prosecutor’s comments were not improper. The
prosecutor’s comment that DNA from two individuals
was present on the mop handle was based on Yang’s
testimony that the defendant and the victim could not
be ruled out as contributors. Her comment that the
defendant was the last person to handle the Swiffer
mop was also based on the evidence presented at trial.
2
The defendant argues that the prosecutor invited
speculation by suggesting, despite a lack of supporting
evidence, that the defendant touched the window latch
in the victim’s bathroom in an effort to see if Robert
had left the apartment building. We disagree.
During closing argument, the prosecutor stated: ‘‘I
have no proof of it . . . [b]ut you do know that there
is a bloody thumb print or fingerprint on the window
latch. Perhaps [the defendant] looked out the window
to see, to make sure [Robert] was gone. You know that
that window looks out [at] the driveway that leads to
and from the parking lot.’’ Yang testified that when
performing DNA testing on the blood found on the
window latch in the victim’s apartment, laboratory tech-
nicians were able to obtain information from only one
of the fifteen loci on a DNA profile. He explained that
the results of testing samples from that one location
were sufficient to eliminate the victim, Frost, and Rison
as contributors; were consistent with Robert’s DNA at
that location; and were insufficient to include or
exclude the defendant or Zippin as contributors.
Although DNA testing was insufficient to link the
defendant to the bloody fingerprint on the window
latch, the prosecutor’s comment was not unduly specu-
lative. The prosecutor’s argument that the jury reason-
ably could find that the defendant had touched the
window latch in an effort to see if Robert had left the
apartment building was based on evidence adduced
at trial. In particular, there was evidence that Robert
received an unusual text message from the victim’s
phone asking her to leave when she was banging on
the door to the victim’s apartment; Robert received a
follow-up text message from the victim’s phone inquir-
ing as to her location; the bathroom window overlooked
the driveway leading to the rear parking lot; and later
on the night of the murder, the defendant appeared at
a friend’s house with a cut on his hand.
C
The defendant also argues that the prosecutor
improperly offered her personal opinion, made inflam-
matory statements and vouched for the credibility of
witnesses during her closing argument. We conclude
that the prosecutor did not engage in misconduct when
she made the comments in question during her clos-
ing arguments.
We begin with a discussion of the relevant law. ‘‘[T]he
prosecutor may not express his [or her] own opinion,
directly or indirectly, as to the credibility of the wit-
nesses. . . . Nor should a prosecutor express his [or
her] opinion, directly or indirectly, as to the guilt of the
defendant. . . . Such expressions of personal opinion
are a form of unsworn and unchecked testimony, and
are particularly difficult for the jury to ignore because
of the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . . A prosecutor also may not appeal to the
emotions, passions and prejudices of the jurors . . . .’’
(Internal quotation marks omitted.) State v. Santiago,
269 Conn. 726, 735, 850 A.2d 199 (2004). ‘‘[A]n improper
appeal to the jurors’ emotions can take the form of a
personal attack on the defendant’s character . . . .’’
(Internal quotation marks omitted.) State v. Santiago,
143 Conn. App. 26, 37, 66 A.3d 520 (2013).
1
The defendant claims that the prosecutor improperly
opined as to the meaning of evidence when she stated
that she was ‘‘guessing’’ that the victim let the defendant
enter his apartment. During closing argument, the pros-
ecutor stated: ‘‘First element of burglary in the first
degree, entered and unlawfully remained in an apart-
ment. We have no signs of forced entry here. I’m guess-
ing [the victim] let [the defendant] in. Didn’t let him
in to stab him and rob him.’’ (Emphasis added.)
The prosecutor’s comment was not improper. When
the prosecutor used the word ‘‘guess,’’ she was not
improperly opining on evidence. Rather, she was dis-
cussing an element of burglary, and arguing to the jury
that there were no signs of forced entry and that it was
possible for the jury to infer that the victim let the
defendant into his apartment. ‘‘It is not . . . improper
for the prosecutor to comment upon the evidence pre-
sented at trial and to argue the inferences that the jurors
might draw therefrom . . . .’’ (Internal quotation
marks omitted.) State v. Luster, supra, 279 Conn. 435.
2
The defendant argues that the prosecutor improperly
expressed her opinion when she stated that it was ‘‘odd’’
that the defendant would ask Frost to throw away
freshly laundered jeans. The prosecutor commented
during closing argument on the defendant’s request to
Frost to wash his black jeans and then place them in
the trash: ‘‘And you know, Frost said it’s not unusual
for [the defendant] to ask me to wash his clothes. It
was unusual for him to ask to throw them away. I guess,
my reaction as a female is, why the heck didn’t you
just tell me to throw them away? Why’d you have me
wash ‘em? That’s odd behavior, ladies and gentlemen.
That is odd behavior.’’
The prosecutor’s comments directly related to Frost’s
testimony that he did not think it was ‘‘odd’’ that the
defendant requested that he launder the defendant’s
black jeans and place them in the trash. In the course
of discussing the evidence presented at trial, the prose-
cutor was not bound by Frost’s characterization of the
defendant’s request. We conclude that the prosecutor’s
comments were merely an appeal to the jury’s common
sense and life experiences. Therefore, the prosecutor’s
comments were not improper. ‘‘Our case law reflects
the expectation that jurors . . . will consider evidence
on the basis of their common sense. Jurors are not
expected to lay aside matters of common knowledge
or their own observation and experience of the affairs
of life, but, on the contrary, to apply them to the evi-
dence or facts in hand, to the end that their action may
be intelligent and their conclusions correct.’’ (Internal
quotation marks omitted.) State v. Guadalupe, 66 Conn.
App. 819, 826, 786 A.2d 494 (2001), cert. denied, 259
Conn. 907, 789 A.2d 996 (2002).
3
The defendant’s next argument concerns the prosecu-
tor’s comments during rebuttal argument regarding
Latasha Drummond’s minor son, Elijah Drummond. Eli-
jah Drummond testified that in June, 2012, he found a
knife in a bathroom closet and that he placed the knife
under his bed. During a search of the residence of
Latasha Drummond and Rison, the police found and
seized the knife, which had a blade of approximately
ten inches, from a bedroom. Robert identified the knife
as having belonged to the victim. There were no identifi-
able fingerprints on the knife and the knife tested nega-
tive for blood. During closing argument, defense
counsel suggested that the knife belonged to Rison and
was not the murder weapon. During rebuttal argument,
the prosecutor asked whether the jury thought Rison
would have left a large knife in a location where Elijah
Drummond could locate it and be harmed. The prosecu-
tor stated, ‘‘[t]he defendant, who doesn’t care anything
about those children or to put a knife in a place where
he didn’t care . . . if a child found it. We’re lucky that
little child found it and put it in his room and didn’t
get hurt. As far as we know, he didn’t get hurt. I would
ask if [Latasha Drummond and Rison] strike you as that
type of people who didn’t love and care for their
children?’’
The defendant argues that the prosecutor made
inflammatory comments about the defendant’s disre-
gard for the safety of children and that the prosecutor
improperly vouched for Latasha Drummond and Rison
when she asked if the jury thought Latasha Drummond
and Rison did not love and care for their children. We
do not agree.
The prosecutor’s comments were in response to
defense counsel’s comment made during rebuttal argu-
ment that Rison may have placed the knife in the closet.
The prosecutor did not improperly vouch for the credi-
bility of Rison or Latasha Drummond, but asked the
jury to draw on common sense to determine if they
were likely to place a knife where a child in their house-
hold could find it. The prosecutor’s comment that the
defendant hid the knife in Latasha Drummond’s resi-
dence without regard for the safety of the children in
the household was a comment on the evidence pre-
sented that the victim died from stab wounds, the defen-
dant appeared nervous and was carrying a duffle bag on
the night of the murder, there were children in Latasha
Drummond’s residence and that Elijah Drummond
found a knife in the closet. See State v. Oehman, 212
Conn. 325, 334, 562 A.2d 493 (1989) (prosecutor’s char-
acterization of defendant as ‘‘coward’’ not impermissi-
ble in light of evidence presented).
III
The defendant’s final claim is that the court abused
its discretion in denying his motion for a new trial.
We disagree.
On September 30, 2014, the day before the start of
evidence, defense counsel filed a motion in limine to
preclude the testimony of Rison, Milner and Latasha
Drummond on the ground that the state prejudiced the
defendant by providing defense counsel that very day
with a lengthy packet of discovery materials that per-
tained, in part, to those witnesses. The next day, Octo-
ber 1, 2014, the prosecutor stated during argument to
the court that the disclosure contained certain informa-
tion concerning Latasha Drummond and Rison. The
court denied the motion in limine, reasoning that it had
heard nothing that would prevent the state from calling
those three witnesses to testify that day, October 1,
2014.
Prior to sentencing, the defendant filed a motion for
a new trial in which he argued that the court erred by
denying his motion in limine to preclude the testimony
of Rison, Milner and Latasha Drummond. The court
denied the motion ‘‘[b]ased on the evidence presented
at trial . . . .’’
The defendant argues that the state’s late disclosure
of exculpatory materials deprived him of his due pro-
cess rights due according to Brady v. Maryland, 373
U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). He
argues that the state disclosed the information packet
the day before the witnesses testified and that each
witness testified to at least one fact that he or she had
not disclosed previously: Latasha Drummond testified
that when the defendant came to her house on June
16, 2012, it was dark outside; Rison testified that on
June 16, the defendant inquired about a gun buyer and
mentioned a robbery; and Milner testified that the
defendant, who did not own a car, showed her a car
key and told her that he had gotten a car. He contends
that, as a result, the witnesses were not cross-examined
regarding the details of the matter pertaining to Rison
and Latasha Drummond, and Rison and Latasha Drum-
mond were not ‘‘pushed further on inconsistencies in
what they had said.’’
‘‘Appellate review of a trial court’s decision granting
or denying a motion for a new trial must take into
account the trial judge’s superior opportunity to assess
the proceedings over which he or she has personally
presided. . . . Thus, [a] motion for a new trial is
addressed to the sound discretion of the trial court and
is not to be granted except on substantial grounds. . . .
In our review of the denial of a motion for [a new trial],
we have recognized the broad discretion that is vested
in the trial court to decide whether an occurrence at
trial has so prejudiced a party that he or she can no
longer receive a fair trial. The decision of the trial court
is therefore reversible on appeal only if there has been
an abuse of discretion.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. McIntyre, 250 Conn. 526,
533, 737 A.2d 392 (1999).
‘‘Under Brady v. Maryland, [supra, 373 U.S. 87], [t]he
state is constitutionally obligated to disclose certain
information to a defendant. The principles of due pro-
cess require the prosecution to disclose exculpatory
evidence that is material to a defendant’s guilt or punish-
ment. . . . In order to prove a Brady violation, the
defendant must show: (1) that the prosecution sup-
pressed evidence after a request by the defense; (2)
that the evidence was favorable to the defense; and (3)
that the evidence was material.’’ (Internal quotation
marks omitted.) State v. Morrill, 42 Conn. App. 669,
677, 681 A.2d 369 (1996).
The evidence in the present case was disclosed prior
to the start of evidence. ‘‘[E]vidence known to the defen-
dant or his counsel, or that is disclosed, even if during
trial, is not considered suppressed as that term is used
in Brady.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Walker, 214 Conn. 122, 126, 571 A.2d
686 (1990). The defendant’s reliance on Brady is mis-
placed because he has no basis to claim suppression.
See id. The defendant in this case ‘‘can complain only
of the timing of the disclosure. . . . Under such cir-
cumstances the defendant bears the burden of proving
that he was prejudiced by the failure of the state to
make [the] information available to him at an earlier
time.’’ (Citation omitted.) Id., 126–27.
The defendant also has failed to establish how he
was prejudiced by the alleged late disclosure. Latasha
Drummond testified on cross-examination that she did
not tell the police that the defendant came to her house
at dusk on June 16, 2012, Rison testified on cross-exami-
nation that he did not tell the police that the defendant
mentioned a robbery and Milner testified that she did
not tell the police that the defendant had a car. The
witnesses were not cross-examined regarding the
details of the matter pertaining to Rison and Latasha
Drummond, although the prosecutor had elicited evi-
dence, during the direct examination of Latasha Drum-
mond, regarding her and Rison. The defendant had an
opportunity to draw attention to any inconsistencies
between the statements the three witnesses gave to
the police and their trial testimony. If defense counsel
wanted to use material in the packet for impeachment
purposes, he could have moved to recall the witnesses
or requested a continuance; the defendant, however,
did neither of those things. The defendant has failed to
demonstrate any prejudice resulting from the state’s
failure to disclose the packet on an earlier date. Accord-
ingly, we conclude that the court did not abuse its
discretion in denying the defendant’s motion for a
new trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Yang explained that the term ‘‘touch DNA’’ refers to a type of DNA
sample wherein an individual deposits DNA on an object by handling it.
2
See State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).
3
Even if the underlying evidentiary claim were reviewable, Yang’s testi-
mony did not equate random match probability with source probability.
Yang expressed random match probability as a percentage. The prosecutor
argued during closing argument that Yang’s touch DNA testimony, ‘‘in con-
text with all the other evidence,’’ indicated that the defendant’s DNA was
on the mop handle. (Emphasis added.) It was not improper for the prosecutor
to invite the jury to draw a reasonable inference based on the evidence
presented at trial.