State v. Williams

Berdon, J.,

dissenting. The defendant’s claim concerning the prosecutor’s rebuttal argument before the jury deeply concerns me and requires reversal by this court. The majority refuses to consider this claim on the ground that the defendant did not object to the prosecutor’s argument at trial “with any specificity.” The record makes clear, however, that the defendant raised very specific objections to the prosecutor’s improper and prejudicial comments, properly preserving his claim under our law.

There were at least two segments of the prosecutor’s rebuttal argument that were improper and prejudicial. First, the prosecutor impugned the professionalism of the defense counsel, implying that she had distorted the facts and camouflaged the truth during her closing argument in an attempt to confuse the jury. The following discussion took place in the jury’s presence during the prosecutor’s rebuttal argument:

*259“Mr. Clark [prosecutor]: Miss Wise has been doing this quite a long time before—
“Ms. Wise [defense counsel]: Objection, Your Honor, that is absolutely improper.
“Mr. Clark: I don’t think so.
“The Court: Wait a minute. Read back what he said.
“Ms. Wise: Well, Your Honor, I rather it were not read back.
“Mr. Clark: Excuse me.
“The Court: Was it in reference to Miss Wise’s experience as a lawyer, is that what it was?
“Mr. Clark: Yes. I’m not allowed to say that it must be obvious to this jury that Miss Wise is an experienced, skillful lawyer?
“Ms. Wise: No, he is not allowed to say that.
“The Court: Miss Wise, the jury will understand that whether lawyers are experienced or not is not evidence tending to prove anything [in] this case, but I think it is a reasonable argument that one can make within a very brief fashion. Go ahead, Mr. Clark.
“Mr. Clark: 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—
“Ms. Wise: Your Honor, that’s what I’m objecting to.
“Mr. Clark: Well, you certainly are.
“Ms. Wise: I object to that argument.
“The Court: Miss Wise, that argument is not improper.
“Ms. Wise: I take exception.
“The Court: All right.
*260“Mr. Clark: And making sure that there is no continuity to the argument that I’m going to make for you is also part of that technique. So keep that in mind as I get interrupted, which I did not do.”

The federal courts have held that it is constitutional error for a prosecutor to attack the integrity of defense counsel in order to impute guilt to a defendant. “[T]he obvious import of the prosecutor’s comments was that . . . defense counsel in criminal cases are retained solely to lie and distort the facts and camouflage the truth in an abominable attempt to confuse the jury as to their client’s involvement with the alleged crimes.” Bruno v. Rushen, 721 F.2d 1193, 1194 (9th Cir. 1983), cert. denied sub nom. McCarthy v. Bruno, 469 U.S. 920, 105 S. Ct. 302, 83 L. Ed. 2d 236 (1984). “Even though such prosecutorial expressions of belief are only intended ultimately to impute guilt to the accused, not only are they invalid for that purpose, they also severely damage an accused’s opportunity to present his case before the jury. It therefore is an impermissible strike at the very fundamental due process protections that the Fourteenth Amendment has made applicable to ensure an inherent fairness in our adversarial system of criminal justice.” Id., 1195; see also United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980).

This prosecutor’s rebuttal argument is particularly harmful when viewed in the context of the jury instruction the trial court gave on the “ingenuity of counsel.” The trial judge instructed the jury, in part, as follows concerning the state’s burden of proof: “A reasonable doubt is not a doubt raised by one who questions just for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation, conjecture or an imaginary doubt. A reasonable doubt is not a captious or a frivolous doubt, nor is it a doubt which is raised by the ingenuity [of] counsel or by a juror and which is unwarranted by the evidence, nor is it a doubt prompted by *261sympathy for the defendant.” (Emphasis added.) This instruction lent credence to the prosecutor’s suggestion that defense counsel, through devious means, was attempting to confuse the jury about the guilt of her client.1

Defense counsel clearly objected to the prosecutor’s comments on her skill, both during the rebuttal argument, as discussed previously, and immediately after it. The objection that followed the prosecutor’s rebuttal argument was made with great specificity:

“Ms. Wise: Your Honor, I had some objections to the closing argument. Do you want me to do them now or do you want me to do them after the charge?
“The Court: I suppose you perhaps ought to do it now.
“Ms. Wise: I object, Your Honor, to the repeated attacks, which I consider feminine attacks. Attacks on me because—and I would ask Your Honor in light of those kinds of attacks on a lawyer, which I believe are unethical, to eliminate from the charge that aspect which I believe Your Honor gives on, ‘it is not a doubt put in your mind by the ingenuity of counsel,’ because, in fact, if a reasonable doubt is put in the mind by the ingenuity of counsel that is perfectly reasonable, that is a reasonable doubt and that is the job of counsel.
“So, I’d object, given the strong attacks on me personally and my way of trying the case, that if Your Honor was going to give that charge, that it be eliminated. I object to that part of the charge anyway.
*262“The Court: I’m not making it a part.
“Ms. Wise: But I object—
“The Court: I’m going to give that, but you didn’t read the whole sentence, ‘and unwarranted by the evidence,’ you forgot that part. . . .
“Ms. Wise: I understand that. All I’m saying is because of this particular closing, 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. I’m not saying on some cases it isn’t right, in this case it’s wrong. I object to the closing and I ask for a curative instruction on that and I ask that that instruction on ingenuity of counsel not be given.”

Under our law, a claim that a prosecutor has made prejudicial comments during closing argument is properly preserved as long as the defendant objects to the comments either when they are made or at the close of arguments. Furthermore, a defendant preserves his claim that the comments deprived him of a fair trial if he seeks a curative instruction or mistrial on the basis of the comments. State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); see also State v. Castonguay, 218 Conn. 486, 508, 590 A.2d 901 (1991). Contrary to the majority’s conclusion, the defendant’s very specific objection and request for a curative instruction following closing arguments preserved all of his rights to review of this claim.

The second argument made by the prosecutor is equally egregious.2 During his rebuttal, the prosecu*263tor stated that: “There’s courthouse lore here—and these things grow up in a courthouse—one of them says that women aren’t tough enough to convict or they let emotion cloud their judgments and that’s what happens on an average jury. Well, none of you believe that and we didn’t pick you believing that or there wouldn’t be any women on this jury.”

The judiciary of this state has made clear that gender bias has no place in our legal system and will not be tolerated. See Connecticut Judicial Branch, Gender and Justice: Guidelines to Ensure Fairness, A Handbook for the Courts (1991). This handbook states that “[¡judges, attorneys and judicial employees . . . must be aware continuously of the need to speak and act without regard to gender bias.” Id., p. 2. More specifically, “[t]he ability of jurors to apply the relevant law in arriving at a verdict is not dependent on their gender.” Id., p. 3.

Telling female jurors that they are thought to be weak and emotional, and that they may dispel this notion by voting to convict, is reprehensible conduct that violates the defendant’s right to a fair trial. The majority concedes that “[tjhe prosecutor’s statement amounted to a challenge to the women jurors to convict the defendant or risk condemnation as being soft or emotional” and that such conduct “singles out female jurors from their counterparts” and “could have subjected the female jurors to pressure from other jurors.” Four or five of the jurors were women.

*264After closing arguments were finished, defense counsel objected to the prosecutor’s comments concerning female jurors: “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.” The trial court refused, however, to give the jury a curative instruction in order to ameliorate the prosecutor’s improper argument and assure the female jurors that they should not feel pressured to convict. I believe this prevented the defendant from receiving a fair trial.

Even if the prosecutor’s conduct did not rise to the level of a constitutional violation, a reversal of these convictions would be required under our supervisory powers; see State v. Ruiz, 202 Conn. 316, 330, 521 A.2d 1025 (1987); because the state’s case was not overwhelming. The majority states, in connection with the defendant’s claim pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86 (1986), that “the state produced compelling evidence of the defendant’s identity and guilt” because “[a]t least two other witnesses [apart from Thaddeus Sanders] provided statements connecting the defendant to the crime.” This significantly overstates the state’s case. The state called three other witnesses to the crime at trial, Tivette Smith, David Lisbon and Charlesetta Holland. Smith testified that she did not know whether the defendant had been the shooter, and that she had told the police that she did not know. She had told her sister that the defendant had shot the victim but only because others had stated that this was the case. Lisbon testified that the defendant was not the shooter and that he did not remember telling the police otherwise. Only Holland identified the defendant at trial, and she had been drinking beer prior *265to the shooting and had given an incorrect description of the defendant to the police. As the state concedes, the defendant called four witnesses who had seen the shooting and who had given descriptions to the police that were inconsistent with the defendant being the shooter. In addition, the defendant presented an eyewitness who testified specifically that the defendant was not the shooter.

I believe the improper and prejudicial comments of the prosecutor require a reversal of the defendant’s convictions and a new trial.

I respectfully dissent.

Indeed, when defense counsel attempted to call the court’s attention to the improper argument, it played into the hands of the prosecutor. As noted previously, after defense counsel objected to the prosecutor’s comments concerning her skills, the prosecutor stated that defense counsel was deliberately interrupting him as part of her “technique” for confusing the issues. Defense counsel understandably abstained from objecting to this statement in the jury’s presence, and the trial judge did not caution or rebuff the prosecutor.

I also find objectionable a third set of comments made by the prosecutor during his rebuttal argument: “There’s some worse courthouse lore for this time of year which is called the Christmas verdict. . . . [Wjhat that *263means is the average juror gets caught up in the pressure of the season coming or the spirit of the season and gives the defendant a little gift, which is his acquittal, or we’re going to get caught up in the spirit of the season and we’re going to require more than proof beyond a reasonable doubt.” Defense counsel objected to this argument as well. We certainly would not condone an argument by defense counsel that the jury should acquit the defendant in keeping with the spirit of the season.