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STATE OF CONNECTICUT v. CASEY SINCLAIR
(AC 38366)
Lavine, Keller and Beach, Js.
Argued January 3—officially released May 9, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Crawford, J.)
John L. Cordani, Jr., assigned counsel, with whom
was Damian K. Gunningsmith, for the appellant
(defendant).
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Don E. Therkildsen, Jr., senior assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Casey Sinclair, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of possession of narcotics with intent
to sell by a person who is not drug-dependent in viola-
tion of General Statutes § 21a-278 (b). The defendant
claims that (1) the trial court abused its discretion by
admitting into evidence testimonial hearsay in violation
of his constitutional right to confrontation, (2) the pros-
ecutor committed multiple acts of impropriety, and (3)
the court abused its discretion in admitting into evi-
dence inadmissible ‘‘guilt by association’’ evidence. We
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The defendant lived in the Bronx, New York and
owned Sinclair Enterprises, a business that sold used
cars. Between October, 2012, and February, 2013, the
defendant and his girlfriend, Winsome Lawrence, drove
to Connecticut approximately nine or ten times in a
Jeep to go to a mall in Waterbury. On February 5, 2013,
as they did on every other trip, the defendant drove the
Jeep to Lawrence’s house, and Lawrence drove the Jeep
to Waterbury while the defendant sat in the passen-
ger seat.
When they arrived in Waterbury, the defendant told
Lawrence to get off the highway at an exit and directed
her to a side road. Shortly thereafter, a black vehicle
parked on the same side of the road. The defendant
opened the center console of the Jeep, pulled a string,
and took out two white parcels of heroin. He gave the
bags to an individual in the black vehicle and walked
back to the Jeep with money in his hands. On his way
back to the Jeep, the defendant saw a marked police
vehicle, and he threw the money into a bush. Lawrence
drove the defendant to a nearby gas station. At the gas
station, she heard the defendant say on his cell phone,
‘‘Jay, come and pick me up . . . I’m going back for the
money.’’ The defendant then went into the gas station,
telling Lawrence that he needed to get a black bag. After
he returned to the Jeep, the black vehicle mentioned
previously came and picked up the defendant. The
defendant left the gas station for approximately ten
minutes.1 When he returned, he had a black bag filled
with money, and he told Lawrence to drive to the mall.
Earlier that day, at approximately 4:30 p.m., a detec-
tive with the Waterbury Police Department received an
anonymous tip that ‘‘activity’’ was going to take place
that night in Waterbury.2 The detective relayed this
information to Gary Angon, a sergeant with the Water-
bury Police Department. On the basis of the tip, Angon
assigned the officers in his unit to survey the area
around the mall. At approximately 8 p.m., Angon saw
the Jeep. He radioed the officers, telling them that he
had observed a vehicle that fit the description of the
one that they were looking for. Angon pulled the Jeep
over, and the defendant appeared more nervous than
most people who interact with the police because he
kept looking up and down the street and hesitating
when answering Angon’s questions. Angon asked the
defendant who owned the Jeep, and the defendant
replied that ‘‘it was his friend’s.’’
Shortly thereafter, James Dickey, a detective with
the Waterbury Police Department, and Bella, Dickey’s
narcotics detection canine, conducted a narcotics
detection sweep of the Jeep. Bella alerted Dickey to
the center console of the Jeep, and Dickey and Eric
Medina, an officer with the Waterbury Police Depart-
ment, found a number of prepackaged bags of heroin
and a black bag filled with money in a trap in the center
console. The defendant and Lawrence were placed
under arrest.
The defendant was charged with possession of nar-
cotics with intent to sell by a person who is not drug-
dependent.3 During the state’s case-in-chief, Angon tes-
tified about the police surveillance that ended with the
arrests of the defendant and Lawrence. He also testified,
over the defendant’s objection, that during the course
of his investigation, he learned that the Jeep had been
inspected at Manny’s Auto Repair, which was located
next to Sinclair Enterprises, the defendant’s place of
business, in New York. Medina testified that he recov-
ered approximately 10,000 bags of heroin, stored in
ten bricks, that were worth approximately $45,000 to
$60,000 and a black bag filled with cash worth $12,248
in the Jeep. Charmaine Henriques, Lawrence’s cousin,
testified that she had spoken with the defendant after
the incident, and he told her that he ‘‘was trying a thing
and g[ot] fucked.’’
Lawrence testified for the state,4 describing the drug
transaction and the events that took place at the gas
station. Lawrence also testified that the Jeep belonged
to the defendant. The state introduced into evidence a
videotape that depicted Lawrence, the defendant, and
the black vehicle at the gas station. The videotape also
showed the driver of the black vehicle, and Angon testi-
fied, over the defendant’s objection, that he recognized
him as Terrence Saunders, a known heroin dealer.
The defendant testified on his own behalf that, con-
trary to Lawrence’s testimony, he and Lawrence had
only driven to Connecticut on two occasions, the sec-
ond time being the night on which they were arrested.
He testified that on the night of the arrest, he and Law-
rence were going to a casino but decided to stop by
the mall for dinner. Later, on direct examination, he
contradicted himself, testifying that they went to Con-
necticut to meet a man named Paul because Paul
wanted to sell a vehicle to him. He testified that Paul
was in the black vehicle that picked him up at the gas
station, but that there were also two other men in the
vehicle whom the defendant did not know. He denied
ever seeing the narcotics or the money in the Jeep prior
to their discovery by the police. He also denied owning
the Jeep, testifying that the Jeep belonged to Lawrence.
On January 30, 2015, the jury found the defendant
guilty of possession of narcotics with intent to sell by a
person who is not drug-dependent. The court sentenced
the defendant to eight years imprisonment, five years
of which were mandatory. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant first claims that the court violated his
right to confrontation when it admitted into evidence
Angon’s testimony that the Jeep was inspected at Man-
ny’s Auto Repair, located next to the defendant’s busi-
ness in the Bronx, New York. Specifically, the defendant
argues that evidence of the inspection information was
inadmissible testimonial hearsay and that admitting the
evidence was not harmless error because the inspection
location was a critical piece of evidence linking the
defendant to the Jeep. The state argues that the evi-
dence was not testimonial hearsay, and even if it was,
the state showed that the error was harmless beyond
a reasonable doubt. We conclude that even if the defen-
dant’s right to confrontation was violated, any violation
was harmless error.
The following additional facts are relevant to this
claim. Angon testified on direct examination that, on
the basis of his training and experience, a drug dealer
often uses a vehicle he owns during a drug transaction
but registers it in someone else’s name. The dealer will
also have someone else drive the vehicle in order to
‘‘avoid any connection with the drug.’’ He also testified
that narcotics are often transported from New York to
Waterbury. The state then introduced into evidence a
printout detailing the Jeep’s registration information,
but neither the place of inspection nor a code that
related to the place of inspection was included on the
printout.5 Relying on the printout, Angon testified that
the Jeep was registered in New York to a man named
Victor A. Manana. The state asked Angon where the
Jeep was inspected, and defense counsel objected on
the ground of hearsay because Angon would be testi-
fying about ‘‘information he gleaned somewhere else.’’
The court overruled the objection, and Angon testified
that the Jeep was inspected at Manny’s Auto Repair,
which was a business located adjacent to the defen-
dant’s business, Sinclair Enterprises.
The defendant questioned Angon during cross-exami-
nation about how he obtained the inspection informa-
tion. Angon replied that sometime in the last two days,
someone in his ‘‘office contacted New York State police
to see if they could translate . . . the information that’s
on the printout.’’ Outside the presence of the jury, the
defendant moved to strike any and all of Angon’s testi-
mony relating to the Jeep’s inspection information. The
defendant argued that Angon’s testimony was hearsay
because Angon testified about information he obtained
from someone in his office who obtained it from an
unidentified individual in New York. He also argued
that admitting the evidence violated Crawford.6 The
state argued that a New York officer had merely trans-
lated a ‘‘somewhat confusing registration document
. . . .’’ The court denied the motion to strike.
During his case, the defendant testified that Manny’s
Auto Repair was located on a lot next to Sinclair Enter-
prises, but that the properties were separated by a fence
and that he did not have any ownership interest in
Manny’s Auto Repair. On cross-examination, however,
he admitted that he used Manny’s Auto Repair to per-
form repairs on the used cars he sold. The state also
put into evidence Sinclair Enterprises’ Internet site that
advertised it as a ‘‘used car service and auto repair
facility located in the Bronx.’’
On appeal, the defendant argues that the court vio-
lated his constitutional right to confrontation when it
admitted Angon’s inspection testimony. The defendant
argues that Angon’s testimony was hearsay because he
obtained the inspection information from an unknown
individual working in his office who obtained the infor-
mation from someone working for the ‘‘New York State
police,’’ and the inspection information was used to
prove the truth of the matter asserted. He also argues
that the evidence was testimonial in nature because
Angon received the information during the course of
his investigation, and the primary purpose of the investi-
gation was to prove events relevant to a criminal prose-
cution. The defendant contends that the state failed
to meet its burden of showing that the constitutional
violation was harmless beyond a reasonable doubt
because a critical component of the state’s case was
linking the defendant to the Jeep, and without the
inspection information, the case ‘‘rose and fell on Law-
rence’s testimony and her credibility.’’ We disagree with
the defendant and conclude that even if the court
abused its discretion in admitting Angon’s testimony,
the state met its burden of showing that any evidentiary
error was harmless.
We will assume, without deciding, that the court
abused its discretion in allowing Angon to testify as to
where the Jeep was inspected because the evidence
was testimonial hearsay. ‘‘When an [evidentiary] impro-
priety is of constitutional proportions, the state bears
the burden of proving that the error was harmless
beyond a reasonable doubt. . . . If the evidence may
have had a tendency to influence the judgment of the
jury, it cannot be considered harmless.’’ (Internal quota-
tion marks omitted.) State v. William L., 126 Conn.
App. 472, 481, 11 A.3d 1132, cert. denied, 300 Conn. 926,
15 A.3d 628 (2011). ‘‘That determination must be made
in light of the entire record . . . .’’ (Emphasis added;
internal quotation marks omitted.) State v. Mitchell, 296
Conn. 449, 460, 996 A.2d 251 (2010).
‘‘Whether such error is harmless in a particular case
depends upon a number of factors, such as [1] the
importance of the witness’ testimony in the prosecu-
tion’s case, [2] whether the testimony was cumulative,
[3] the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial points, [4] the extent of cross-examination other-
wise permitted, and, of course, [5] the overall strength
of the prosecution’s case. . . . Most importantly, we
must examine the impact of the evidence on the trier
of fact and the result of the trial.’’ (Internal quotation
marks omitted.) State v. Smith, 289 Conn. 598, 628, 960
A.2d 993 (2008).
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . .’’ (Emphasis added; internal quotation marks
omitted.) State v. Mourning, 104 Conn. App. 262, 267,
934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d
594 (2007). Moreover, ‘‘[i]n determining whether the
defendant is guilty, it is the sole right of the jury as the
trier of the facts to draw all reasonable and logical
inferences from the facts as it finds them to exist. . . .
[I]n considering the evidence introduced in a case,
[j]uries are not required to leave common sense at the
courtroom door . . . nor are they expected to lay aside
matters of common knowledge or their own observa-
tion and experience of the affairs of life, but, on the
contrary, to apply them to the evidence or facts in hand,
to the end that their action may be intelligent and their
conclusions correct.’’ (Internal quotation marks omit-
ted.) State v. Adorno, 45 Conn. App. 187, 195, 695 A.2d
6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).
To demonstrate the defendant’s guilt, the state was
required to prove that the defendant possessed and
intended to sell the narcotics found in the Jeep. See
General Statutes § 21a-278 (b). The main issue in the
case was whether the defendant had constructive pos-
session of the narcotics.7 ‘‘[T]o prove illegal possession
of a narcotic substance, it is necessary to establish that
the defendant knew the character of the substance,
knew of its presence and exercised dominion and con-
trol over it. . . . [When] . . . the [narcotics are] not
found on the defendant’s person, the state must proceed
on the theory of constructive possession, that is, posses-
sion without direct physical contact.’’ (Internal quota-
tion marks omitted.) State v. Mangual, 311 Conn. 182,
215, 85 A.3d 627 (2014). ‘‘[K]nowledge of the presence
of narcotics and control may be proved circumstan-
tially. . . . In situations in which the putative offender
is not in exclusive possession of the premises where
the narcotics are found, we may not infer that he or
she knew of the presence of the narcotics or that he
or she had control over them, without incriminating
statements or circumstances to support that inference.’’
(Internal quotation marks omitted.) State v. Slaughter,
151 Conn. App. 340, 346–47, 95 A.3d 1160, cert. denied,
314 Conn. 916, 100 A.3d 405 (2014).
Angon’s testimony regarding the Jeep’s inspection
was meaningful because it provided circumstantial evi-
dence that the defendant may have had an ownership
interest in the Jeep, which, in turn, supports the proposi-
tion that he knew about and had control over the narcot-
ics. After an examination of the entire record, however,
we conclude that the state has proved that the error
was harmless beyond a reasonable doubt because the
overall strength of the state’s case shows that the
inspection information did not have a tendency to influ-
ence the judgment of the jury.
The state presented a significant amount of evidence
which directly, or indirectly, supported the charge that
the defendant knowingly possessed the narcotics in the
Jeep. Lawrence testified that she observed the defen-
dant take two white parcels out from the center console
of the Jeep and engage in a drug transaction with an
individual in a black vehicle. After the transaction, the
defendant threw money into a bush and told her to
drive to a gas station. At the gas station, she heard him
say on his cell phone, ‘‘Jay, come and pick me up . . .
I’m going back for the money.’’ The defendant told her
to park near a wall. He then went inside the gas station
and eventually returned to the Jeep. Then, the pre-
viously mentioned black vehicle arrived and picked up
the defendant. She testified that when he returned, he
had a black bag filled with cash.
The state also presented the video recorded at the
gas station, which depicted the following events. A tan
Jeep with New York license plates parked in a lit area
of the side parking lot. Approximately ten minutes later,
the Jeep drove to the opposite side of the gas station
and parked near a wall in an area with no lighting.
While on his cell phone, the defendant exited the Jeep,
purchased a soda from within the gas station, and
returned to the Jeep. Approximately three minutes later,
a black vehicle parked in front of the gas station. The
defendant exited the Jeep and entered the backseat of
the black vehicle without shaking hands, introducing
himself, or otherwise acknowledging the individuals in
the vehicle, whom he claimed not to know. Approxi-
mately ten minutes later, the black vehicle returned and
parked next to the Jeep, which was still in the unlit
area of the parking lot, and the defendant exited the
black vehicle and went back into the Jeep. In addition,
the state presented evidence that the police recovered
$12,248 worth of cash in the Jeep, and, on the basis of
Medina’s testimony that there was $45,000 to $60,000
worth of narcotics in the Jeep, the jury reasonably could
have found that two bricks of narcotics was worth
approximately $12,000. This supports Lawrence’s testi-
mony that she saw the defendant take out of the center
console and sell two parcels of narcotics.
‘‘Whether [a witness’] testimony [is] believable [is] a
question solely for the jury. It is . . . the absolute right
and responsibility of the jury to weigh conflicting evi-
dence and to determine the credibility of the witnesses.’’
(Internal quotation marks omitted.) State v. Rodriguez,
93 Conn. App. 739, 751, 890 A.2d 591 (2006), appeal
dismissed, 281 Conn. 817, 917 A.2d 959 (2007). The
jury was free to credit Lawrence’s testimony over the
defendant’s testimony and draw any reasonable infer-
ences from it. Moreover, any inconsistencies in Law-
rence’s testimony were fully explored by defense
counsel on cross-examination and during closing
argument.
The state also presented other incriminating evidence
against the defendant in addition to Lawrence’s testi-
mony. The videotape showed that the driver of the
black vehicle was a known heroin dealer and that the
narcotics found in the Jeep were heroin. The anony-
mous tip that the police received revealed that ‘‘activity’’
was going to take place in Waterbury, and, on the basis
of the contents of the tip, the police were instructed
to survey the area around the mall to look for a Jeep
with New York license plates. The police located the
defendant near the mall in a Jeep with New York license
plates. When Angon pulled the Jeep over, the defendant
appeared more nervous than the average person who
interacts with the police. See State v. Williams, 110
Conn. App. 778, 788, 956 A.2d 1176 (defendant’s ‘‘ner-
vous’’ and ‘‘fidgety’’ behavior one factor in finding that
defendant constructively possessed narcotics), cert.
denied, 289 Conn. 957, 961 A.2d 424 (2008). When ques-
tioned by the police about who owned the Jeep, the
defendant stated that the Jeep belonged to ‘‘a friend,’’
and at the police station, he asked Lawrence, ‘‘what did
you tell police.’’ A few weeks later, he told Henriques
that ‘‘I was trying a thing and I g[ot] fucked.’’ He also
told Henriques that Lawrence was not involved in the
incident, but gave Henriques $4000 to bail Lawrence
out of jail. After Lawrence was released from custody,
the defendant promised her that he would pay for her
rent, although he never gave her any money.
The defendant’s own testimony may have been dam-
aging to his case. He testified that he and Lawrence
were on their way to a casino, but then contradicted
himself and testified that they were actually going to
Connecticut to speak to a man named Paul about pur-
chasing a vehicle. In response to the prosecutor’s ques-
tion, ‘‘[the mall is in] the opposite direction of the
casino, [r]ight?’’ the defendant responded that he did
not know how to get to the casino from Waterbury.
The defendant stated that he did not know Paul’s last
name or any of the other occupants in the black vehicle.
He also testified that it took only ten minutes for the
defendant to be driven to the place where the used
vehicle was, inspect the vehicle, decide not to purchase
the vehicle because he and Paul could not agree on a
price, and be driven back to his Jeep.
The state also presented evidence that supported its
theory that the defendant was a drug dealer and was
using Lawrence to separate himself from the narcotics.
See State v. Slaughter, supra, 151 Conn. App. 348 (detec-
tive’s testimony that defendant’s actions ‘‘were consis-
tent with the behaviors of drug sellers and purchasers’’
constituted evidence that defendant had intent to sell
contraband). Angon testified that, on the basis of his
training and experience, it was common practice for
drug dealers, in order to distance themselves from the
contraband, to register their vehicles in someone else’s
name, have someone else drive the vehicle, and trans-
port the narcotics from New York to Waterbury. Law-
rence’s testimony and the registration printout8 showed
that the defendant’s actions comported with this prac-
tice: the defendant drove the Jeep to Lawrence’s house,
but had Lawrence drive the Jeep from the Bronx to
Waterbury, and the Jeep was registered to Victor A.
Manana. In addition, the defendant testified that in
November, 2013, Lawrence purchased two cell phones
and gave one to the defendant, but registered both
phones under her name, and the defendant paid her
directly for his phone. On cross-examination, he admit-
ted that he could not recall how many cell phones he
had with him on the night of the arrest, testifying that
he did not ‘‘think [he] had two cell phones’’ with him.
We acknowledge the dissent’s concern that the prose-
cutor used the inspection information during closing
argument to prove the state’s theories that the defen-
dant owned the Jeep and that his actions comported
with those of a drug dealer. The inspection information,
however, was not the only piece of evidence the prose-
cutor used in closing argument to prove these proposi-
tions. The prosecutor relied heavily on Lawrence’s
testimony that the defendant owned the Jeep and that
he drove it to her house on nine or ten occasions. He
also used the fact that the Jeep was not registered
in the defendant’s name. The prosecutor’s use of the
inspection information was confined to a relatively
small portion of his closing argument, and the vast
majority of it was dedicated to bolstering Lawrence’s
credibility and undermining the defendant’s credibility.
When one considers the cumulative force of all of the
evidence that the state presented to prove the defen-
dant’s guilt and the impact that all of the evidence had
on the jury, which is the most important consideration
in our harmlessness analysis, we believe the state is
able to meet this burden. See State v. Smith, supra, 289
Conn. 628 (‘‘[m]ost importantly, we must examine the
impact of the evidence on the trier of fact and the result
of the trial’’ [internal quotation marks omitted]).
On the basis of our review of the entire record, we
conclude that even if the court abused its discretion by
admitting Angon’s testimony, the state has shown that
any error was harmless beyond a reasonable doubt.
II
A
Analysis of Claimed Improprieties
The defendant’s second claim is that the prosecutor
committed multiple acts of impropriety during closing
and rebuttal argument to the jury. Specifically, the
defendant claims that the prosecutor committed twelve
acts of impropriety that fall into five categories: (1)
arguing facts not in evidence; (2) putting a false choice
to the jury that it must ‘‘disbelieve’’ the testimony of
Henriques, Angon, and Medina in order to find the
defendant not guilty, which the defendant claims consti-
tutes a violation of State v. Singh, 259 Conn. 693, 793
A.2d 226 (2002); (3) disparaging the integrity and role
of defense counsel; (4) commenting on the credibility
of Lawrence; and (5) appealing to the emotions and
passions of the jury.9 We agree with the defendant that
the prosecutor committed impropriety when he put a
‘‘false choice’’ to the jury, and when he disparaged the
integrity and role of defense counsel, but, nevertheless,
find that the improprieties were harmless.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to a
fair trial. . . . ‘‘[W]hen 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; inter-
nal quotation marks omitted.) State v. Maguire, 310
Conn. 535, 552, 78 A.3d 828 (2013).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments.’’ (Internal quotation marks omitted.) State v.
Medrano, 308 Conn. 604, 611, 65 A.3d 503 (2013).
‘‘[B]ecause closing arguments often have a rough and
tumble quality about them, some leeway must be
afforded to the advocates in offering arguments to the
jury in final argument. [I]n addressing the jury, [c]ounsel
must be allowed a generous latitude in argument, as
the limits of legitimate argument and fair comment can-
not be determined precisely by rule and line, and some-
thing must be allowed for the zeal of counsel in the
heat of argument.’’ (Internal quotation marks omitted.)
State v. Mucha, 137 Conn. App. 173, 194, 47 A.3d 931,
cert. denied, 307 Conn. 912, 53 A.3d 998 (2012).
1
Singh Violation
The defendant claims that the prosecutor impermissi-
bly argued to the jury that it must disbelieve the testi-
mony of Henriques, Angon, and Medina in order to
believe the testimony of the defendant. We agree with
the defendant in regard to Angon’s and Medina’s tes-
timony.10
During his rebuttal argument, the prosecutor stated
that ‘‘[y]ou have to disbelieve Sergeant—and you can,
you completely judge credibility. But you have to disbe-
lieve . . . Henriques, Sergeant Angon, Medina, and
you have to believe [the defendant]. I submit to you the
evidence doesn’t show [t]hat.’’ (Emphasis added.)
‘‘[A] witness may not be asked to characterize another
witness’ testimony as a lie, mistaken or wrong. More-
over, closing arguments providing, in essence, that in
order to find the defendant not guilty, the jury must
find that witnesses had lied, are similarly improper.’’
(Footnote omitted.) State v. Singh, supra, 259 Conn.
712. ‘‘[A] prosecutor’s argument could make this sugges-
tion to the jury without using the word ‘lying.’ ’’ State
v. Albino, 312 Conn. 763, 787, 97 A.3d 478 (2014). ‘‘The
reason for this restriction is that [t]his form of argument
. . . involves a distortion of the government’s burden
of proof. . . . Moreover . . . such arguments pre-
clude the possibility that the witness’ testimony con-
flicts with that of the defendant for a reason other than
deceit.’’ (Internal quotation marks omitted.) State v.
Tate, 85 Conn. App. 365, 371, 857 A.2d 394, cert. denied,
272 Conn. 901, 863 A.2d 696 (2004). However, ‘‘when
the prosecutor argues that the jury must conclude that
one of two versions of directly conflicting testimony
must be wrong, the state is leaving it to the jury to make
that assessment.’’ (Emphasis added.) State v. Albino,
supra, 787.
We conclude that the prosecutor’s comment was
improper because he argued to the jury that it was
required to find the testimony of Angon and Medina
mistaken or wrong in order to believe the testimony of
the defendant.11 See id., 788 (comment improper
because it precluded jury from crediting both state’s
witnesses and defendant or from reconciling evidence
state claimed was in direct conflict). The state argues
that the prosecutor ‘‘simply highlight[ed] [to the jury]
that the parties had presented irreconcilable con-
trasting proofs’’ and, therefore, the prosecutor left it to
the jury to decide who was more credible. This is an
inaccurate characterization of the testimony. The jury
could have reconciled the defendant’s testimony with
that of Angon and Medina, as almost nothing in the
record indicates that their testimony was in direct con-
flict.12 Thus, the prosecutor was not merely pointing
out a necessary inference that the jury must make, but
instead, gave the jury a false choice between believing
Angon and Medina or believing the defendant. See State
v. Grant, 286 Conn. 499, 544, 944 A.2d 947 (comment
that jury would have to ‘‘ ‘choose to disbelieve’ ’’ two
detectives proper because prosecutor pointed out nec-
essary inference jury must make from defense counsel’s
closing argument), cert. denied, 555 U.S. 916, 129 S. Ct.
271, 172 L. Ed. 2d 200 (2008).
2
Disparagement of the Integrity and Role
Of Defense Counsel
The defendant claims that the prosecutor disparaged
the integrity and role of defense counsel during rebuttal
argument to the jury with two separate comments. The
state appears to concede that the first comment was
improper but argues that the second comment was not.
We agree with the defendant that both comments
were improper.
First, the prosecutor stated, ‘‘[s]o, here the state’s
Hobson’s choice, our conundrum, if we don’t put into
evidence up to the lab, defense can argue, oh, my God,
they didn’t test anything. Oh, my God, what are they
doing. Just like he did with the black bag, right, and
then we do send the stuff up there, we know we’re not
gonna get stuff, usually they use that against us, right
. . . .’’ (Emphasis added.) Second, the prosecutor
stated: ‘‘When you think about [Lawrence’s] testimony,
think about the manner in which I ask questions, even
consider how I was talking. And think about the rocket-
fire questions from defense counsel. Was he trying to
trip her up? Was he trying to put words in her mouth?’’
(Emphasis added.)
‘‘[T]he prosecutor is expected to refrain from
impugning, directly or through implication, the integrity
or institutional role of defense counsel. . . . [I]t is
improper for a prosecutor to tell a jury, explicitly or
implicitly, that defense counsel is employing standard
tactics used in all trials, because such argument relies
on facts not in evidence and has no bearing on the issue
before the jury, namely, the guilt or innocence of the
defendant. . . . There is a distinction [however]
between argument that disparages the integrity or role
of defense counsel and argument that disparages a the-
ory of defense.’’ (Citations omitted; internal quotation
marks omitted.) State v. Outing, 298 Conn. 34, 82–83,
3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct.
1479, 179 L. Ed. 2d 316 (2011).
The state appears to concede that the ‘‘usually they
use that against us’’ comment was improper. See State
v. Young, 76 Conn. App. 392, 404, 819 A.2d 884 (prosecu-
tor’s comment that defense counsel’s argument was
‘‘ ‘always a favorite argument’ ’’ of defense attorneys
improper), cert. denied, 264 Conn. 912, 826 A.2d 1157
(2003); State v. Brown, 71 Conn. App. 121, 129, 800
A.2d 674 (prosecutor’s comment that defense counsel’s
argument was ‘‘ ‘smoke screen’ ’’ that all defense attor-
neys employ as usual defense tactic improper), cert.
denied, 261 Conn. 940, 808 A.2d 1133 (2002). We agree.
The question becomes whether the second comment
was improper. The defendant argues that the comment
was improper because the comment implied that
defense counsel tried to ‘‘elicit false testimony through
trickery’’ when he vigorously cross-examined Law-
rence. The state argues that the prosecutor was only
responding to defense counsel’s argument, which
‘‘focused exclusively on . . . the manner of [Law-
rence’s] responses to questions.’’ This comment pre-
sents a close call. For purposes of our analysis, we will
assume, without deciding, that the comment was
improper.
B
Due Process Analysis
Because we conclude that the prosecutor committed
improprieties, we now turn to the second step of our
two part analysis. In making our determination, we are
guided by the factors enumerated in State v. Williams,
204 Conn. 523, 540, 529 A.2d 653 (1987). ‘‘These factors
include [1] the extent to which the [impropriety] was
invited by defense conduct or argument, [2] the severity
of the [impropriety], [3] the frequency of the [impropri-
ety], [4] the centrality of the [impropriety] to the critical
issues in the case, [5] the strength of the curative mea-
sures adopted, and [6] the strength of the state’s case.’’
(Internal quotation marks omitted.) State v. Martinez,
319 Conn. 712, 736, 127 A.3d 164 (2015). ‘‘[W]hen 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, 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.’’ State v. Payne,
303 Conn. 538, 562–63, 34 A.3d 370 (2012). Applying the
Williams factors, we conclude that the defendant was
not deprived of his right to due process because he
failed to show that, in light of the entire trial, the impro-
prieties were so egregious that they amounted to a
denial of due process.
The first factor, which is whether the comments were
invited by defense counsel, does not weigh in favor of
either party. The defendant did not invite the prosecutor
to make the Singh violation comment because neither
defense counsel’s theory of the case nor closing argu-
ment pertained to the credibility of Angon or Medina.13
See State v. Stevenson, 269 Conn. 563, 593, 849 A.2d 626
(2004) (comment invited because defendant’s theory of
case was that police lied). The defendant also did not
invite the prosecutor to make the ‘‘usually they use that
against us’’ comment because defense counsel never
argued that the prosecutor engaged in common tactics
employed by prosecutors. See State v. Brown, supra, 71
Conn. App. 130–31 (comment invited because defense
counsel mentioned tactics that all prosecutors employ
in criminal cases). Defense counsel, however, invited
the prosecutor to make the ‘‘trying to trip her up’’ com-
ment. Defense counsel argued during closing argument
about Lawrence’s demeanor on the witness stand, call-
ing her ‘‘unsophisticated,’’ ‘‘not . . . very intelligent,’’
and asserting that she did not ‘‘have a very good under-
standing of anything that’s going on around her.’’ The
prosecutor was free to explain why Lawrence may have
had trouble answering defense counsel’s questions.
The second factor, which is whether the improprie-
ties were severe, weighs in favor of the state. Defense
counsel did not object to or ask for curative instructions
for the Singh violation comment or to the ‘‘usually
they use that against us’’ comment. ‘‘[D]efense counsel’s
failure to make a contemporaneous objection [or ask
for curative instructions] certainly permits an inference
that counsel did not think the impropriety was severe,
and that it is in part the responsibility of counsel that
the impropriety went uncured.’’ State v. Grant, 154
Conn. App. 293, 328, 112 A.3d 175 (2014), cert. denied,
315 Conn. 928, 109 A.3d 923 (2015). We recognize that
defense counsel did object to the ‘‘trying to trip her
up’’ comment, and he asked the court for a curative
instruction, which the court denied. The existence of
an objection, however, is not the sole factor in our
determination of whether an impropriety was severe.
‘‘Beyond defense counsel’s failure to object, in
determining the severity of prosecutorial impropriety,
we look to whether the impropriety was blatantly egre-
gious or inexcusable.’’ State v. Fauci, 282 Conn. 23, 51,
917 A.2d 978 (2007). We do not find this comment so
blatantly egregious as to warrant reversal of the defen-
dant’s conviction.
The third factor, which is the frequency of the com-
ments, weighs in favor of the state. The prosecutor
made three impermissible comments, and they were all
confined to his rebuttal argument. See State v. Franklin,
162 Conn. App. 78, 105, 129 A.3d 770 (2015) (comment
proper because prosecutor made remarks only once in
each of his initial and rebuttal closing arguments), cert.
denied, 321 Conn. 905, 138 A.3d 281 (2016). The fourth
factor, which is whether the comments pertained to a
critical issue in the case, does not clearly weigh in favor
of either party. A critical issue in the case was the
veracity of Lawrence and the defendant. The ‘‘usually
they use that against us’’ comment did not pertain to
this issue. The Singh violation comment and the ‘‘trying
to trip her up’’ comment related to this issue because the
prosecutor directly attacked the credibility of Lawrence
and the defendant.
The fifth factor, which is the strength of the curative
measures adopted, does not weigh in favor of either
party. Defense counsel did not object to the Singh viola-
tion comment or the ‘‘usually they use that against us’’
comment. State v. Grant, supra, 154 Conn. App. 328.
Defense counsel, however, objected to the third com-
ment, and the court failed to give a curative instruction.
It should be noted that the court, in fact, sustained the
defendant’s objection. See State v. Warholic, 278 Conn.
354, 401, 897 A.2d 569 (2006) (court took curative mea-
sures when it sustained defense counsel’s objections).
It also gave the jury specific instructions about weighing
the testimony of accomplices.14 Finally, the sixth factor,
which is the strength of the state’s case, weighs in favor
of the state. As discussed previously, the state had a
relatively strong case against the defendant.
After an examination of the Williams factors in the
context of the entire trial, we conclude that the defen-
dant was not deprived of his right to a fair trial because
there was no reasonable likelihood that the jury would
have returned a different verdict absent the impro-
prieties.
III
The defendant’s third claim is that the court abused
its discretion when it allowed Angon to testify that he
knew that Saunders, the driver of the black vehicle,
was a known heroin dealer. Specifically, the defendant
argues that this was inadmissible ‘‘guilt by association’’
evidence. The state claims that the evidence was prop-
erly admitted because it was ‘‘relevant and probative’’
to show possession and intent to sell the narcotics. We
agree with the state.
The following additional facts are relevant to this
claim. Before the state presented its evidence, the
defendant informed the court that he had learned that
the state intended to elicit testimony from Angon that
he, after reviewing the videotape, recognized the driver
of the black vehicle as Saunders because he had
arrested Saunders in 2012, for the ‘‘sale of heroin in
the Waterbury area.’’ The defendant made a motion in
limine to preclude the evidence because there was no
evidence that the defendant knew Saunders. The state
argued that the information was relevant to show the
defendant’s intent to sell and possession of the narcot-
ics. The court denied the motion in limine, but noted
that the defendant could object to the testimony once
the state offered to put it into evidence.
During the state’s case-in-chief, Angon testified that
he viewed the videotape and recognized the man driving
the black vehicle as Saunders. He did not testify as
to how he knew Saunders. The next day, Lawrence
testified. At the conclusion of her testimony, the state
asked permission from the court to recall Angon to
testify as to how he knew Saunders. The state argued
that in light of Lawrence’s testimony, the identity of
Saunders as a known heroin dealer was relevant to
whether the defendant had possessed and intended to
sell narcotics. The defendant argued that the evidence
was irrelevant because there was no evidence presented
that the defendant personally knew Saunders. The court
ruled that the state was not allowed to elicit testimony
concerning any details of Saunders’ 2012 arrest, but it
could elicit testimony that Angon knew Saunders to be
a known heroin dealer.
At the end of the state’s case-in-chief, the state
recalled Angon outside the presence of the jury to make
an offer of proof. Angon testified that on the basis of
his training and experience, he knew that Saunders was
a known heroin dealer in Waterbury. The defendant
objected to the question, but the court ruled that on
the basis of Lawrence’s testimony, Angon’s proffered
testimony was relevant to show possession and intent
to sell the narcotics, and that the evidence was more
probative than prejudicial. The state recalled Angon,
and he testified that he knew Saunders to be a known
heroin dealer.
On appeal, the defendant argues that the court abused
its discretion in allowing Angon to testify that Saunders
was a known heroin dealer. The defendant contends
that his testimony was inadmissible ‘‘guilt by associa-
tion’’ evidence because there was no evidence pre-
sented that the defendant knew Saunders. The
defendant argues that admitting the testimony was
harmful because the state’s case was not strong inde-
pendent of the evidence. We disagree.
‘‘As an initial matter, we review a court’s decision
to admit or to exclude evidence under a deferential
standard, i.e., whether the court’s ruling was an abuse
of discretion.’’ State v. Reese, 77 Conn. App. 152, 160,
822 A.2d 348, cert. denied, 265 Conn. 910, 831 A.2d
252 (2003).
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is not
rendered inadmissible because it is not conclusive. 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.’’ (Internal quotation
marks omitted.) State v. Kantorowski, 144 Conn. App.
477, 487–88, 72 A.3d 1228, cert. denied, 310 Conn. 924,
77 A.3d 141 (2013). ‘‘Relevant evidence is excluded,
however, when its probative value is outweighed by
the danger of unfair prejudice.’’ State v. Ferguson, 260
Conn. 339, 359, 796 A.2d 1118 (2002).
We conclude that the court did not abuse its discre-
tion in finding that Angon’s testimony regarding Saun-
ders was relevant to show the defendant’s possession
of and his intent to sell the narcotics, and that such
evidence was more probative than prejudicial. On the
basis of the evidence presented by the state, the jury
reasonably could infer that the defendant associated
with Saunders for the purpose of engaging in a drug
transaction, which makes Angon’s testimony relevant
and probative to the state’s case.
The defendant argues that such testimony was imper-
missible ‘‘guilt by association’’ evidence. It is well estab-
lished that ‘‘guilt by association’’ evidence is insufficient
to find a defendant guilty of a crime. State v. Kelsey,
160 Conn. 551, 554, 274 A.2d 151 (1970). We agree that
such evidence has the potential to be prejudicial and
stress that each case must turn on its own facts. Such
evidence, however, is admissible if the state presents
evidence of other incriminating circumstances that
makes the evidence relevant and probative to the state’s
case. In the present case, the other incriminating evi-
dence the state presented was the testimony of Law-
rence that she saw the defendant engage in a drug
transaction with an unknown individual in a black vehi-
cle that Saunders was driving, and the videotape
depicting the defendant leaving the gas station with
Saunders after engaging in the drug transaction. See
State v. Ober, 24 Conn. App. 347, 352, 588 A.2d 1080
(finding sufficient evidence of ownership of narcotics
in part because defendant was seen conversing with
individual who was well known to police and was in
an area known for drug trafficking), cert. denied, 219
Conn. 909, 593 A.2d 134, 135, cert. denied, 502 U.S. 915,
112 S. Ct. 319, 116 L. Ed. 2d 260 (1991); see also United
States v. O’Connell, 841 F.2d 1408, 1425 (8th Cir. 1988);
United States v. Raftery, 563 F.2d 965, 966 (9th Cir.
1977). Thus, we conclude, given the circumstances in
this case, that the evidence was properly admitted.
The judgment is affirmed.
In this opinion KELLER, J., concurred.
1
Lawrence testified that the defendant was gone for approximately twenty
to twenty-five minutes. A review of the videotape shows that the defendant
left the gas station for approximately ten minutes.
2
The court granted the defendant’s motion to exclude any testimony
describing the information in the tip. It noted, however, that the state was
permitted to elicit testimony about any actions the police took on the basis
of the information that they learned from the tip.
3
General Statutes § 21a-278 (b) provides in relevant part: ‘‘Any person
who . . . possesses with the intent to sell or dispense . . . any narcotic
substance . . . who is not, at the time of such action, a drug-dependent
person, for a first offense shall be imprisoned not less than five years or
more than twenty years . . . .’’
4
Lawrence was charged with conspiracy to possess narcotics. The charges
against her were still pending when she testified.
5
The state acknowledged during oral argument before this court that the
print-out did not contain any inspection information.
6
See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004).
7
During closing arguments, defense counsel conceded that the substance
found in the Jeep was heroin and that whoever had possession of the heroin
intended to sell it. He argued that the issue in the case was whether the
defendant knew of and had possession of the narcotics.
8
The defendant claims that the inspection information was improperly
admitted into evidence, but does not contest the admission of the document
itself, which showed the registration information, including that the Jeep
was registered to a man named Victor A. Manana.
9
We address only three acts of alleged impropriety in detail because we
find the remainder to be without merit. First, the defendant claims that the
prosecutor argued facts not in evidence on seven different occasions. Sec-
ond, he claims that the prosecutor made a comment that impermissibly
opined on Lawrence’s credibility. Third, he claims that the prosecutor made
a comment that impermissibly appealed to the emotions of the jury. After
a review of the record, besides the three improprieties we discuss in detail,
we conclude that the rest of the comments were not improper.
10
The state is correct in that there is a direct conflict between Henriques’
testimony and the defendant’s testimony. Henriques testified that the defen-
dant stated, ‘‘I was trying a thing and I g[ot] fucked.’’ The defendant testified
that he never told her this.
11
The prosecutor did not specifically use the words ‘‘lied, ‘‘wrong,’’ or
‘‘mistaken.’’ Nevertheless, we find the comment improper because it still,
in essence, required the jury to characterize testimony as wrong or mistaken
when the testimony was capable of being reconciled.
12
The only direct conflict cited by the state is the defendant’s testimony
that he was not nervous when the police pulled him over, which conflicts
with Angon’s testimony that the defendant was nervous. This conflict does
not influence our conclusion.
13
Defense counsel did contest Henriques’ credibility during closing argu-
ments when he argued about her motives to lie.
14
The court stated that the jury ‘‘must look with particular care at the
testimony of an accomplice and scrutinize it very carefully before you
accept it.’’