State v. Williams

Borden, J.,

concurring. I agree fully with parts I, III, IV and V of the majority opinion. I concur with the result reached by the majority in part II, but not, however, with the majority’s analysis.

Part II of the majority opinion deals with the defendant’s challenge to certain aspects of the state’s final argument. I concur with the majority in rejecting that challenge, but I reach that result by a different route. The defendant’s challenge on appeal is in two separate parts. The first part deals with the prosecutor’s reference to the skill of the defense attorney. The second part deals with the prosecutor’s reference to the “courthouse lore” regarding female jurors.

I disagree with the majority that either of these challenges was not adequately preserved at trial. My reading of the record indicates that the trial court was adequately advised of the essential nature of the objections made by the defendant. Analyzing the two challenges separately, I conclude that (1) there was nothing improper about the prosecutor’s reference in his closing argument to the skill of the defense attorney, and (2) the prosecutor’s reference to the female jurors was improper but harmless.

Regarding the prosecutor’s reference to the skill of the defendant’s attorney, the defendant claims that the “obvious import of the prosecutor’s comments was that defense counsel had been retained solely to distort the facts and camouflage the truth in an attempt to confuse the jury as to her client’s involvement in the homicide.” There simply is no basis in this record for such a characterization of the prosecutor’s comments.

*256The defense counsel ended her final argument by urging the jury to acquit the defendant on the basis of a reasonable doubt.1 The prosecutor then began his rebuttal argument: “Miss Wise has been doing this quite a long time before . . . .” The defense counsel then objected on the ground that “that is absolutely improper.” After the prosecutor asked, “I’m not allowed to say that it must be obvious to this jury that Miss Wise is an experienced, skillful lawyer,” the defense counsel stated, “No, he is not allowed to say that.” After the trial court overruled the objection to the argument, the prosecutor continued: “As you can tell, Miss Wise is very good at her job, you’ve watched her do it. However, don’t let her experience and her skill . . . .’’At that point, the defense counsel objected again, and the court again overruled the objection. The prosecutor then continued his argument, the principal thrusts of which were to counter the defense counsel’s interpretation of the evidence, to counter other arguments that she had made in an attempt to convince the jury that there was reasonable doubt about the defendant’s guilt, and to remind the jury of the strengths of the state’s case.2

*257This record discloses no basis for the defendant’s claim that the prosecutor’s argument suggested that defense counsel had been retained solely, or in part, for the purpose of distorting the facts in an attempt to confuse the jury regarding the defendant’s involvement in the charged homicide. In fact, the argument of the prosecutor was to the effect that, as the trial court properly noted, a doubt raised by the ingenuity of counsel and not warranted by the evidence or lack thereof is not a reasonable doubt. I see nothing wrong, constitutional or otherwise, about such an argument, and regard it as well within the bounds of zealous but proper advocacy.

With respect to the prosecutor’s argument regarding female jurors, I also believe that it was adequately preserved. 3 Furthermore, despite the state’s claim in its brief that this argument does nothing more than mirror the findings of the Task Force on Gender, Justice and the Courts, I believe that the argument implicitly addresses itself to the female members of the jury, and I do not think that it is proper for any advocate, state or defense, to address particular members of the jury. Furthermore, I join in the majority’s condemnation of the implicit sexist message of the argument. The impropriety of the argument having been brought *258to the attention of the trial court, the court improperly declined the defendant’s request for a curative instruction.

I am not persuaded, however, that there is anything constitutional about this impropriety. The prosecutor’s argument was, rather, much like the instructional error we identified in State v. Walton, 227 Conn. 32, 64, 630 A.2d 990 (1993). In that case, we characterized as “a nonconstitutional claim in constitutional garb”; id.; instructions that suggested that jurors, as officers of the court, uphold the law of the land “ ‘by rendering a verdict of guilty if the facts and the law require such a verdict.’ ” Id., 63.1 conclude, further, that the error was harmless, because the defendant has not established that it is more likely than not that the verdict would have been different absent the error.

The defense counsel had stated: “There’s a dead man here, there’s a wounded man here, everybody feels terrible about that. It’s a tragedy that people feel on the street. It would be more of a tragedy for an innocent man, a man who has not been proven to be guilty beyond a reasonable doubt, to have his life destroyed because of guesses, surmises or what you think might have happened on Orchard Street. If you were sitting where he’s sitting, wouldn’t you want your jury to be pretty damn sure before you voted to convict someone? Thank you.”

After the prosecutor had concluded, the defense counsel elaborated on her objection to the prosecutor’s final argument by linking it to the court’s proposed charge to the jury that a reasonable doubt is not a doubt that is raised by the ingenuity of counsel and is not warranted by the evidence. She stated: “that may be a fine instruction sometimes, but because of this particular closing, which is an objectionable and a personal and professional attack on me, that that kind of instruction is wrong under the facts and circumstances of this case and I object to it.” (Emphasis added.)

I think that the emphasized language above was sufficient to make clear to the trial court the serious nature of the defendant’s challenge to the state’s *257argument. Claiming that the prosecutor has made a personal and professional attack on the defense counsel in closing argument is, in my view, sufficient to preserve an appellate challenge to the propriety of the argument, even though the challenge did not specifically mention its legal basis. Moreover, even if this record falls short of complete and adequate preservation of the claim, I would review the claim because it raises an issue that probably occurs with some frequency in final arguments.

More specifically, the defense counsel stated: “I object to those aspects of the closing which talked about courthouse lore that women on the jury can’t convict, which is a test to the women on the jury to show how tough you are, you have to convict. That kind of gender argument is as inappropriate as a racial argument and is wrong and is improper and I ask that a curative instruction be given on that.”