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STATE OF CONNECTICUT v. JOHN A. MASSARO
(AC 43323)
Moll, Alexander and DiPentima, Js.
Syllabus
Convicted of the crime of the sale of a narcotic substance, the defendant
appealed to this court. The defendant sold crack cocaine to M, who
testified about the drug sale at trial. Prior to trial, M was interviewed
and gave a statement to a defense investigator, P, who provided a
memorandum containing M’s statement to defense counsel. In her state-
ment, M indicated that she had possessed narcotics prior to meeting
with the defendant and that she provided narcotics to the defendant.
The parties agreed prior to trial that the state would not present expert
testimony from its witnesses regarding narcotics trafficking. During trial,
it was discovered that defense counsel failed to timely disclose P’s
memorandum. The trial court concluded that P’s memorandum was not
protected attorney work product and should have been disclosed to the
state pursuant to the relevant rule of practice (§ 40-15). The court
imposed a sanction on the defense limiting P’s testimony and ruled that
P’s memorandum would not come into evidence. The trial court ordered
defense counsel to provide a redacted copy of the memorandum to the
prosecutor and to make P available for subsequent questioning. Defense
counsel called P as a witness, who testified that M provided narcotics
to the defendant on the day of his arrest. Immediately following this
testimony, the court provided the jury with a limiting instruction that
the testimony was to be used only for the purpose of impeaching M’s
prior inconsistent statement that she had purchased narcotics from the
defendant. During his cross-examination of P, a former law enforcement
officer, the prosecutor asked a series of questions regarding the sale
and use of drugs. After P had answered these questions, defense counsel
objected on the ground that the parties’ agreement did not permit opinion
testimony regarding the narcotics trade and that P had not been offered
as an expert. The court denied defense counsel’s motion for a mistrial.
The trial court also denied the defendant’s motion for a new trial on
the basis of prosecutorial impropriety. Held:
1. The defendant could not prevail on his claim that the trial court abused
its discretion in determining that defense counsel had violated discovery
rules and by imposing a sanction limiting P’s testimony as a result of
that violation as any error relating to the court’s discovery ruling and
sanction was harmless: although the trial court improperly determined
that P’s memorandum constituted M’s statement pursuant to § 40-15
and imposed a sanction limiting P’s testimony regarding his memoran-
dum, this court, in reviewing the entirety of the evidence adduced at
trial, concluded that the record sufficiently provided a fair assurance that
any nonconstitutional error relating to the determination of a discovery
violation did not substantially affect the verdict, as the defendant was
able to present to the jury the fact that M had made a prior inconsistent
statement in which she claimed to have possessed the narcotics prior
to her meeting with the defendant, and there was ample evidence pre-
sented by the state that M was the buyer and that the defendant was
the seller in the narcotics transaction.
2. The defendant could not prevail on his claim that the trial court abused
its discretion in permitting the prosecutor to go beyond the scope of
direct examination on his cross-examination of P and to convert him
into an expert witness regarding the narcotics trade after the parties
had agreed not to present expert testimony on that topic: even assuming,
arguendo, that the court’s evidentiary rulings regarding the state’s cross-
examination of P constituted an abuse of discretion, any such error was
harmless as this court could not conclude that the jury’s verdict was
substantially swayed by the state’s cross-examination of P, as testimony
from several witnesses supported the state’s case that the defendant
sold the narcotics.
3. The defendant failed to establish that his due process right to a fair trial
was violated as a result of prosecutorial impropriety:
a. The defendant failed to establish that any impropriety occurred during
the prosecutor’s cross-examination of P when P was asked if he knew
the state had been unaware of the statement M purportedly had made
to P regarding the possession of narcotics; contrary to the defendant’s
claim, P did not impugn the integrity of defense counsel as the thrust
of the prosecutor’s inquiry was on the actions of P, and not defense
counsel, specifically, the prosecutor highlighted for the jury the contrast
of P’s statements on his company’s website and P’s actions, and this
line of inquiry served to challenge P’s credibility, rather than to demean
the integrity or role of defense counsel; moreover, the prosecutor did not
mention the relevant rules of practice regarding the timing of discovery
materials to the jury.
b. The prosecutor’s challenged comment during closing argument that
the defendant ‘‘behaved himself well in court’’ was not improper; the
remark was made in the context of the prosecutor’s proper comments
that the jurors were required to put aside any sympathy for the defendant,
due to his age, and to decide the case on the basis of the evidence
presented, and the challenged comment focused solely on the defendant’s
good in-court behavior and did not suggest, in any manner, any sort of
illicit or untoward out-of-court conduct, and this court declined to infer
the most damaging interpretation of the prosecutor’s comment.
c. Although this court declined to decide whether the prosecutor’s com-
ment regarding M’s credibility, that she was ‘‘open and honest’’ with
certain aspects of the narcotics transaction, was improper, this court
concluded that the defendant failed to establish a deprivation of his due
process right to a fair trial; the comment was not severe, it was isolated,
it was corrected by the prosecutor immediately, it was ameliorated by
a specific jury charge, and much of the M’s testimony was corroborated
by other witnesses.
Argued January 6—officially released July 13, 2021
Procedural History
Substitute information charging the defendant with
the crime of sale of narcotics, brought to the Superior
Court in the judicial district of Litchfield at Torrington,
geographical area number eighteen, and tried to the
jury before Danaher, J.; thereafter, the court denied
the defendant’s motion for a mistrial; verdict and judg-
ment of guilty; subsequently, the court denied the defen-
dant’s motion for a new trial, and the defendant
appealed to this court. Affirmed.
Lisa J. Steele, for the appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Samantha L. Oden, dep-
uty assistant state’s attorney, Dawn Gallo, state’s attor-
ney, and David R. Shannon, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
ALEXANDER, J. The defendant, John A. Massaro,
appeals from the judgment of conviction, following a
jury trial, of the sale of a narcotic substance in violation
of General Statutes § 21a-277 (a). On appeal, the defen-
dant claims that (1) the court abused its discretion in
determining that defense counsel had violated discov-
ery rules and by imposing a sanction as a result of
that violation, (2) the court abused its discretion with
respect to its evidentiary ruling regarding the state’s
cross-examination of a defense witness, and (3) he was
deprived of his due process right to a fair trial as a
result of prosecutorial impropriety. We disagree, and,
accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On July 13, 2017, Matthew Faulkner, a Torrington
police officer assigned to the narcotics division, was
on duty when he observed two known narcotics users,
Sarah Mikuski1 and her boyfriend, Anthony Roig, walk-
ing on East Main Street. Faulkner then saw the defen-
dant approaching Mikuski and Roig. Faulker continued
his surveillance of these individuals and watched as the
defendant exchanged ‘‘something’’ with Mikuski. After
this brief exchange, the defendant travelled in an oppo-
site direction away from Mikuski and Roig.2 Believing
that a ‘‘hand to hand’’ illegal narcotic transaction had
just occurred, Faulker called for assistance, requesting
that the responding officer intercept the defendant
before he returned to his residence. The police, how-
ever, were unable to locate the defendant that day.
Faulkner approached Mikuski and Roig. He
instructed Mikuski to surrender the item that the defen-
dant had given her. She complied and placed a small
clear plastic bag containing a white powdery substance,
later determined to be crack cocaine,3 on the wall next
to them. Mikuski also emptied her purse, which con-
tained an assortment of used drug paraphernalia,
including empty wax packets, needles, crack pipes con-
taining a burnt residue, and Brillo pads used to filter
crack cocaine when it is smoked. Mikuski admitted that
she handed the defendant a cigarette packet with $26
tucked inside it and purchased $30 worth of crack
cocaine from the defendant.4 Mikuski also admitted that
she had purchased illegal substances from the defen-
dant in the past. Mikuski did not have any other illegal
substances or cash in her possession.
The defendant subsequently was arrested and
charged in an amended long form information with the
sale of a narcotic substance in violation of § 21a-277
(a).5 After a two day trial, the jury found the defendant
guilty. On May 8, 2019, the court sentenced the defen-
dant to ten years of incarceration, execution suspended
after six years, and five years of probation. This appeal
followed. Additional facts will be set forth as necessary.
I
The defendant first claims that the court abused its
discretion when it determined that defense counsel had
violated discovery rules and by imposing a sanction as
a result of that violation. The defendant argues that the
court erred in finding that notes of his investigator,
Benjamin Pagoni, constituted a statement as defined
by the rules of practice. Specifically, the defendant con-
tends that Pagoni’s notes of the interview that he had
conducted with Mikuski on March 5, 2018, did not con-
stitute a statement and, accordingly, were not required
to be disclosed to the state. The defendant also argues
that, as a result of this ruling, the court erroneously
imposed a sanction limiting Pagoni’s testimony. We con-
clude that any error relating to the court’s discovery
ruling and sanction was harmless.
The following additional facts are necessary for the
resolution of this claim. Pursuant to Practice Book
§§ 40-7, 40-13, 40-18, and 40-27, the state filed a motion
on October 26, 2017, requesting that the defendant dis-
close ‘‘any statements of the witnesses other than the
defendant in his possession or in the possession of an
agent of the defendant which statement relates to the
subject matter about which such witness will testify
. . . .’’ On January 7, 2019, defense counsel disclosed
the defendant and Pagoni as potential witnesses.
Mikuski testified on cross-examination that she had
spoken with Pagoni on March 5, 2018. She denied telling
Pagoni that she had possessed narcotics prior to meet-
ing the defendant or that she was going to provide
narcotics to the defendant.
After the state had rested, the court requested that
defense counsel make an offer of proof regarding
Pagoni and his testimony. Defense counsel stated that
Pagoni worked as an investigator and would testify
about a prior statement made to him by Mikuski that
was inconsistent with her trial testimony identifying the
defendant as the narcotics seller. Specifically, Pagoni
would testify that Mikuski had told him that she pos-
sessed narcotics prior to meeting with the defendant
on July 13, 2017, and that she gave narcotics to the
defendant prior to her arrest. Defense counsel repre-
sented that he had communicated this information via
e-mail to the prosecutor the day before.6 He further
indicated that Pagoni had provided him with a memo-
randum detailing his conversation with Mikuski and
that this memorandum (Pagoni memorandum) had
been in his possession since approximately March
12, 2018.
The prosecutor argued that Miksuki’s purported
inconsistent statement should not be permitted into
evidence because its disclosure had been untimely and
thereby constituted a violation of our rules of discovery,
specifically, Practice Book § 40-15 (2).7 The court
inquired whether defense counsel had provided the
Pagoni memorandum to the state. He replied in the
negative, indicating that, in his view, this document
constituted protected attorney work product8 and thus
was exempt from disclosure.
The court rejected defense counsel’s position that
the Pagoni memorandum, even if protected work prod-
uct, was exempt from disclosure, citing Practice Book
§ 40-13 (b).9 The prosecutor noted that the state had
submitted a discovery request and, therefore, sought
to preclude Pagoni from testifying as a result of the
nondisclosure of the Pagoni memorandum.10 The court
ordered defense counsel to provide the prosecutor with
a redacted copy of the Pagoni memorandum and to
make Pagoni available for questioning. It also deferred
ruling on whether Pagoni would be permitted to testify
until the next day.
On January 11, 2019, the defendant filed a memoran-
dum of law regarding the admissibility of Pagoni’s pro-
posed testimony and whether the Pagoni memorandum
constituted a statement that should have been disclosed
to the prosecutor.11 With respect to the Pagoni memo-
randum, the court stated: ‘‘[E]vidence as to the exis-
tence . . . of that written statement is not admissible
and it will not be the subject of testimony by Pagoni
or questioning by any attorney or argument by any
attorney.’’ The court further ruled that the testimony
of Pagoni, if permitted, would be limited to impeaching
Mikuski’s testimony that she had purchased the crack
cocaine from the defendant and not for the purpose of
establishing that she had sold it. It also determined that
the Pagoni memorandum constituted a substantially
verbatim recital of Mikuski’s oral statement that had
been recorded sufficiently contemporaneously, so as
to meet the definition of a statement as set forth in
Practice Book § 40-15. As a result, the court reasoned
that defense counsel should have disclosed the Pagoni
memorandum to the state. The state declined the court’s
offer to delay the proceedings. Defense counsel placed
his disagreements with the court’s ruling and analysis
on the record.
Defense counsel called Pagoni as a witness. He stated
that he had met with Mikuski on March 5, 2018, and
drove her to a nearby Wendy’s restaurant. They ordered
some food and spoke for approximately ten minutes.
Pagoni testified that Mikuski had told him that she
provided narcotics to the defendant on July 13, 2017.
At this point, the court provided the jury with a limiting
instruction that this testimony was to be used only for
the purpose of impeaching Mikuski’s prior statement
that she had purchased narcotics from the defendant.12
During cross-examination, the prosecutor inquired
about Pagoni’s business relationship with defense coun-
sel. Specifically, he asked how many hours Pagoni had
worked on this case. When Pagoni replied that he was
uncertain, the prosecutor asked: ‘‘So, as you sit here
today, you remember specifically what . . . Mikuski
said to you but you can’t remember—you can’t even
approximately—how many hours you worked on this
case?’’ Pagoni, indirectly referring to his memorandum,
answered: ‘‘I can remember what . . . Mikuski said to
me because it’s written down.’’ The prosecutor objected
on the ground that Pagoni’s answer was nonresponsive.
The court excused the jury and reminded counsel that,
during conversations in chambers and on the record,
it had indicated that the Pagoni memorandum would
not come into evidence. The court then admonished
Pagoni and directed him to refrain from mentioning
that he had written down or memorialized Mikuski’s
statements during his testimony. The court iterated this
ruling to both defense counsel and Pagoni. The court
subsequently instructed the jury to disregard any refer-
ence in Pagoni’s testimony to a written memorandum.
After the prosecutor’s cross-examination resumed,
Pagoni stated that Mikuski appeared to be under the
influence of heroin when he had spoken with her on
March 5, 2018. He also admitted that he did not record
Mikuski’s statement or ask her to make a formal written
statement. Additionally, Pagoni acknowledged that he
had not asked whether Mikuski had purchased narcot-
ics from the defendant in the past, or why she would
have given narcotics to the defendant. Finally, he admit-
ted that he never interviewed Roig to verify any of
Mikuski’s statements.
Following the close of evidence, the defendant moved
for a mistrial on the basis that the prosecutor had
impugned the character of defense counsel when he
mentioned the late disclosure of Mikuski’s purported
statement. The prosecutor disputed the assertion that
the character of the defense counsel had been impugned
as a result of the cross-examination of Pagoni. The court
agreed with the prosecutor and denied the motion for
a mistrial.
On February 14, 2019, the defendant filed a motion
for a new trial pursuant to Practice Book § 42-53. The
defendant argued that, as a result of the court’s errone-
ous discovery sanction prohibiting the Pagoni memo-
randum from being admitted into evidence, he ‘‘could
not effectively counter the state’s impeachment of
Pagoni’s memory by having Pagoni testify that he had
a written memorandum to support his memories of his
encounter with Mikuski. As a result, the jury held the
impression that Pagoni had ‘selective memory’ regard-
ing his work on the case.’’
On May 17, 2019, the court issued a corrected memo-
randum of decision denying the defendant’s motion for
a new trial. It again concluded that the Pagoni memoran-
dum constituted a statement for purposes of Practice
Book § 40-15, and therefore should have been disclosed
to the state. The court concluded that, by calling Pagoni
as a witness, any work product protection had been
waived. Next, the court determined that the sanction
imposed, precluding the defendant from presenting any
evidence that Pagoni had memorialized Mikuski’s
March 5, 2018 statement, did not constitute an abuse
of discretion.
On appeal, the defendant claims that ‘‘the trial court
abused its discretion in sanctioning the defendant by
limiting the use of Pagoni’s testimony and limiting his
ability to answer the state’s question about how he
recalled what Mikuski said.’’ He further contends that
he was harmed as a result of this abuse of discretion.
Specifically, he argues that the Pagoni memorandum
of the interview with Mikuski did not constitute her
statement for purposes of Practice Book § 40-15.
In its appellate brief, the state acknowledged that,
based on the relevant case law and the facts of this
case, ‘‘it does not appear that Pagoni’s memorandum
constituted a statement by Mikuski under either subsec-
tion of Practice Book § 40-15, as the trial court deter-
mined.’’ The state maintained, however, that the Pagoni
memorandum constituted Pagoni’s statement under
Practice Book § 40-15 (1), and, therefore, the court
properly determined that it should have been disclosed.
The state also claimed that the sanction imposed by
the court did not constitute an abuse of discretion.
Finally, the state argued, in the alternative, that any
error in imposing the discovery sanction was harmless
because (1) the defendant was able to present evidence
that Mikuski had made an inconsistent statement, (2)
the case did not consist of a credibility contest between
Mikuski and Pagoni, as independent evidence existed
that the defendant was the seller of the narcotics, (3)
the court properly struck, as nonresponsive, Pagoni’s
answer to the prosecutor’s inquiry as to why he had
recalled what Mikuski told him, but not how many hours
he had worked on the case, and (4) the value of Pagoni’s
memorialization of what Mikuski purportedly had told
him would have been undermined by the existing cir-
cumstances, namely, that Mikuski was under the influ-
ence of narcotics during the interview, that Pagoni had
bought her food and had promised her food in the
future, and that he never attempted to verify the accu-
racy of her statements.
We begin our analysis by setting forth our standard
of review and the relevant law. The defendant filed a
motion for a new trial pursuant to Practice Book § 42-
53.13 This rule of practice is limited to trial errors and
provides for the granting of a motion for a new trial in
the interests of justice for constitutional error or other
materially injurious error. State v. Santaniello, 96 Conn.
App. 646, 672, 902 A.2d 1, cert. denied, 280 Conn. 920,
908 A.2d 545 (2006). The appellate standard of review
when considering whether the court properly denied a
motion for a new trial is the abuse of discretion stan-
dard. State v. Sanders, 86 Conn. App. 757, 765–66, 862
A.2d 857 (2005).
This standard also applies to the court’s ruling related
to discovery. State v. Manousos, 179 Conn. App. 310,
334, 178 A.3d 1087, cert. denied, 328 Conn. 919, 181
A.3d 93 (2018). In that case, we stated: ‘‘[T]he purpose
of criminal discovery is to prevent surprise and to afford
the parties a reasonable opportunity to prepare for trial.
. . . To that end, [t]he trial court has broad discretion in
applying sanctions for failure to comply with discovery
orders. . . . We review the court’s actions in managing
discovery pursuant to the abuse of discretion standard.’’
(Citations omitted; internal quotation marks omitted.)
Id.; see also Caccavle v. Hospital of St. Raphael, 14
Conn. App. 504, 507, 541 A.2d 893, cert. denied, 208
Conn. 812, 545 A.2d 1107 (1988).
With respect to nonconstitutional claims, a defendant
must show harm resulting from the error. See State v.
Jones, 205 Conn. 723, 728 n.1, 535 A.2d 808 (1988).
Accordingly, we apply a harmless error analysis to a
motion for a new trial filed pursuant to Practice Book
§ 42-53. Additionally, in State v. Cavell, 235 Conn. 711,
720–23, 670 A.2d 261 (1996), our Supreme Court
engaged in harmless error analysis with respect to the
claim that a discovery sanction had been imposed
improperly. In that case, the court noted than any impro-
priety was nonconstitutional and therefore the defen-
dant bore the burden of establishing harm. Id., 721.
The test for harmless error is well established. ‘‘When
an error is not of constitutional magnitude, the defen-
dant bears the burden of demonstrating that the error
was harmful. . . . The proper standard for review of
a defendant’s claim of harm is whether the jury’s verdict
was substantially swayed by the error. . . . Accord-
ingly, a nonconstitutional error is harmless when an
appellate court has a fair assurance that the error did
not substantially affect the verdict.’’ (Citation omitted;
internal quotation marks omitted.) State v. Payne, 303
Conn. 538, 553, 34 A.3d 370 (2012); see also State v.
Jackson, 334 Conn. 793, 818, 224 A.3d 886 (2020).
We agree with the parties that the trial court improp-
erly determined that the Pagoni memorandum consti-
tuted Mikuski’s statement, as defined by the relevant
rules of practice. We nevertheless conclude that such
nonconstitutional error, and the resulting sanctions,
were harmless.14 See, e.g., State v. Gansel, 174 Conn.
App. 525, 529–30, 166 A.3d 904 (2017) (reviewing court
may assume error and resolve appeal on issue of harm-
lessness). Mikuski testified that she was not working
in July, 2017, but stole money for the purpose of using
drugs daily, namely, heroin and crack cocaine. She
stated that she knew the defendant because he was a
source to obtain drugs and she had purchased them
from him in the past. On July 13, 2017, she texted the
defendant: ‘‘Hey u do a 30 for $26?’’ Impatient after not
receiving a reply, Mikuski then called the defendant.15
Mikuski also testified that she and Roig had planned
to obtain the illegal narcotics from the defendant and
then use them.
After Mikuski was stopped by Faulkner, she placed
the bag of crack cocaine and her used drug parapherna-
lia on a nearby wall. At the time of her arrest, Mikuski
did not have any money, as she had given the $26 to
the defendant for the bag of narcotics. Mikuski indi-
cated that except for one time in the past, she ‘‘never
had the means or the money to be able to sell drugs.’’
Faulkner testified that he knew Mikuski and Roig as
‘‘heavy’’ narcotics users. When he saw them on July 13,
2017, his intention was to observe them and see if they
would purchase narcotics from someone. Faulkner
stated that he observed the defendant exchange ‘‘some-
thing’’ with Mikuski. He then requested assistance from
additional officers and stopped Mikuski and Roig
because he believed an illegal narcotics transaction had
just occurred. Mikuski opened her hand and emptied
her purse, which contained a clear plastic cellophane
bag with crack cocaine and various used pieces of drug
paraphernalia, respectively. Faulkner seized this con-
traband. He also stated that Mikuski did not have any
money on her person at this time.16 Faulkner observed
that the seized crack pipes contained a burnt residue.
Roig testified that on July 13, 2017, his intention was
to consume drugs with Mikuski. Roig indicated on that
date, Mikuski had money to purchase drugs, met with
another individual, and then came back with drugs.
During redirect examination, Roig stated that he was
with Mikuski as she purchased drugs for them to use.
During cross-examination, Pagoni testified, based on
his thirty-four years of law enforcement experience,
that individuals addicted to heroin generally do not give
their drugs away for free. He admitted that addicts
usually do not hold onto drugs before consuming them.
Pagoni also stated, based on his experience, that quick,
hand-to-hand transactions involving drugs are done to
avoid detection and, if an individual had drugs in his
or her hand, that would indicate a recent transaction.17
Additionally, as noted in the state’s brief, the defen-
dant was able to present to the jury the fact that Mikuski
had made a prior inconsistent statement in which she
claimed to have possessed the narcotics prior to her
meeting with the defendant. Given the ample evidence
presented by the state that Mikuski was the buyer and
the defendant was the seller in the July 13, 2017 narcot-
ics transaction, we conclude that any errors by the
court relating to whether the Pagoni memorandum con-
stituted a statement under our rules of practice and the
imposition of a discovery sanction were harmless. See,
e.g., State v. Grant, 179 Conn. App. 81, 92–93, 178 A.3d
437 (improper evidentiary ruling found to be harmless
given strength of state’s case based on other evidence),
cert. denied, 328 Conn. 910, 178 A.3d 1041 (2018); State
v. Rios, 171 Conn. App. 1, 39–40, 156 A.3d 18 (same),
cert. denied, 325 Conn. 914, 159 A.3d 232 (2017). In
reviewing the entirety of the evidence adduced during
the trial, the record provides us with a fair assurance
that any error relating to these matters did not substan-
tially affect the verdict. We conclude, therefore, that
the defendant’s claim that the court’s determination of
a discovery violation and its imposition of a sanction
must fail as any error was harmless in light of the
evidence.
II
The defendant next claims that the court abused its
discretion with respect to the evidentiary ruling regard-
ing the state’s cross-examination of Pagoni. Specifically,
he argues that the court improperly permitted the prose-
cutor to convert Pagoni, a defense witness, into an
expert regarding narcotics trafficking after the parties
had agreed that the state would not present expert
testimony on this topic. We conclude that any error
was harmless.
The following additional facts are necessary for our
discussion. The defendant filed a pretrial motion for
supplemental discovery on December 4, 2018, seeking
information regarding the narcotics unit of the Torring-
ton Police Department, any records of narcotics arrests
made by Faulkner, as well as his training, experience,
and education relating to the investigation of narcotics
crimes. Approximately one month later, the defendant
filed a motion in limine to preclude the state’s witnesses
‘‘from giving expert testimony or opinion testimony
regarding drug trafficking or common characteristics
of drug dealers.’’ He also moved for the disclosure of
the curriculum vitae of any expert witness for the state,
the substance of any facts relied on by the state’s
experts, and a summary of each expert’s opinion. Prior
to the court addressing these motions, the parties
reached an agreement. In their agreement, the state
indicated that it would not present expert testimony
from its witnesses regarding narcotics trafficking.
During the trial, the defense called Pagoni as a wit-
ness. He stated that he had been a Connecticut state
trooper for approximately thirty-four years and that in
his career he had worked in a variety of assignments,
including the narcotics division. During cross-examina-
tion, the prosecutor asked if people who possessed
drugs normally carried them in their hands while walk-
ing down the street. The court overruled an objection
based on speculation, and Pagoni responded that some-
times that does, in fact, occur. The prosecutor contin-
ued to question Pagoni regarding certain aspects of
drug transactions without objection.
After the cross-examination addressed other topics,
the prosecutor asked Pagoni whether drug dealers gen-
erally prefer not to conduct sales inside their homes
or apartments. Defense counsel objected, arguing that
it called for speculation and improper opinion testi-
mony, as Pagoni had not been offered as an expert
witness. The court overruled the objection, stating that
defense counsel had questioned Pagoni about his law
enforcement background on direct examination. The
prosecutor then asked a series of questions regarding
the sale and use of drugs.18
After these questions, the court excused the jury.
Defense counsel noted that he objected to the entire
line of questioning. He stated that, based on his under-
standing of the parties’ agreement, no opinion testi-
mony regarding the narcotics trade would be permitted
at trial and that Pagoni had not been offered as an
expert. Defense counsel also moved for a mistrial. The
prosecutor countered that the agreement of the parties
only prevented the state from calling expert wit-
nesses.19
The court ruled that Pagoni had not testified as an
expert for the defense or for the state. It further deter-
mined that the state was entitled to cross-examine
Pagoni to challenge his credibility regarding his law
enforcement background and, specifically, his experi-
ence in the narcotics division. The court overruled the
defendant’s objection and denied his motion for a mis-
trial.
Defense counsel iterated his arguments regarding the
state’s cross-examination of Pagoni in his motion for a
new trial. Specifically, he stated that this cross-examina-
tion focused on the issues of narcotics dealing and
addiction, and involved expert testimony from an expe-
rienced law enforcement officer well beyond the ken
of an average member of the jury.20 In conclusion, the
defendant claimed that the state had gone beyond test-
ing Pagoni’s credibility and ‘‘clearly used [his] law
enforcement background as a means to admit expert
opinion testimony unfavorable to the defendant.’’ The
court rejected this claim in its memorandum of decision
denying the motion for a new trial.
On appeal, the defendant claims that the court abused
its discretion by permitting the state to go beyond the
scope of the direct examination of Pagoni and to ‘‘con-
vert’’ him into an expert witness. Even assuming,
arguendo, that the court’s evidentiary rulings regarding
the state’s cross-examination of Pagoni constituted an
abuse of discretion,21 we conclude that any such error
was harmless.22
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . We have
concluded that a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict. . . . We
previously have considered a number of factors in
determining whether a defendant has been harmed by
the admission or exclusion of particular evidence.
Whether such error is harmless in a particular case
depends [on] a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Considering these various factors, we have
declared that the proper standard for determining
whether an erroneous evidentiary ruling is harmless
should be whether the jury’s verdict was substantially
swayed by the error.’’ (Internal quotation marks omit-
ted.) State v. Edwards, 202 Conn. App. 384, 403, 245
A.3d 866, cert. denied, 336 Conn. 920, 246 A.3d 3 (2021);
see also State v. Kirsch, 263 Conn. 390, 412, 820 A.2d
236 (2003) (defendant must prove abuse of discretion
and harm that resulted from such abuse to establish
reversible error from evidentiary impropriety).
On the basis of the reasons set forth in part I of this
opinion, we cannot conclude that the jury’s verdict was
substantially swayed by the state’s cross-examination
of Pagoni. See, e.g., State v. Fernando V., 331 Conn. 201,
215, 202 A.3d 350 (2019). The testimony of Faulkner,
Mikuski, and Roig, and the accompanying evidence,
particularly the text message from Mikuski to the defen-
dant wherein she asked if he would sell her $30 of
narcotics for $26, support the state’s case that the defen-
dant sold the narcotics on July 13, 2017. In other words,
given the other evidence presented by the state, we
have a fair assurance that, even if the court improperly
allowed the prosecutor to cross-examine Pagoni regard-
ing the narcotics trade, any such error did not substan-
tially affect the verdict. Accordingly, this claim must
fail.
III
Last, the defendant claims that he was deprived of
his due process right to a fair trial as a result of prosecu-
torial impropriety. Specifically, he argues that prosecu-
torial impropriety occurred during the cross-examina-
tion of Pagoni and during closing argument and that
he suffered prejudice as a result. The state counters
that there was neither impropriety nor prejudice in this
case. We conclude that the defendant failed to establish
that his due process right to a fair trial were violated
as a result of prosecutorial impropriety.
We begin with the relevant legal principles. ‘‘In ana-
lyzing claims of prosecutorial impropriety, we engage
in a two step analytical process. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it had deprived the defendant of his due process [right]
to a fair trial. . . . The defendant has the burden to
show both that the prosecutor’s conduct was improper
and that it caused prejudice to his defense. . . .
‘‘In determining whether the defendant was deprived
of his due process right to a fair trial, we are guided
by the factors enumerated by this court 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
[impropriety], [4] the centrality of the [impropriety] to
the critical issues in the case, [5] the strength of the
curative measures adopted, and [6] the strength of the
state’s case. . . . [A] reviewing court must apply the
Williams factors to the entire trial, because there is no
way to determine whether the defendant was deprived
of his right to a fair trial unless the [impropriety] is
viewed in light of the entire trial. . . . The question of
whether the defendant has been prejudiced by prosecu-
torial [impropriety] . . . depends on whether there is
a reasonable likelihood that the jury’s verdict would
have been different absent the sum total of the impropri-
eties.’’ (Citations omitted; internal quotation marks
omitted.) State v. Sinclair, 332 Conn. 204, 236-37, 210
A.3d 509 (2019); see also State v. Thomas, 177 Conn.
App. 369, 405, 173 A.3d 430, cert. denied, 327 Conn. 985,
175 A.3d 43 (2017).
‘‘[T]he touchstone of due process analysis in cases
of alleged prosecutorial [impropriety] is the fairness of
the trial, and not the culpability of the prosecutor. . . .
The issue is whether the prosecutor’s conduct so
infected the trial with unfairness as to make the
resulting conviction a denial of due process. . . . In
determining whether the defendant was denied a fair
trial [by virtue of prosecutorial impropriety] we must
view the prosecutor’s comments in the context of the
entire trial.’’ (Internal quotation marks omitted.) State
v. Andrews, 313 Conn. 266, 279, 96 A.3d 1199 (2014).
Guided by these principles, we address each of the
claimed improprieties in turn.
The defendant first claims that impropriety occurred
during the prosecutor’s cross-examination of Pagoni.
The prosecutor asked if Pagoni knew that the state had
been unaware of the statement Mikuski purportedly
had made to him at the Wendy’s restaurant regarding
the possession of the narcotics. The court overruled
a relevance objection made by defense counsel. The
prosecutor then stated: ‘‘You’re aware that what you
testified to today, what you claim [Mikuski] said to you
at the Wendy’s, that wasn’t made—the state—you did
not make the state or [defense counsel] did not make
the state aware of that until the day before the trial.
You can look at me. You don’t need to look at [defense
counsel].’’ Defense counsel again objected, and an off-
the-record discussion occurred. Pagoni then admitted
that he knew that the state did not learn about his claim
regarding Mikuski’s statement at the Wendy’s restau-
rant until the day before the trial.
Later, Pagoni stated that, in the past, when he took
statements that tended to exculpate someone, he had
shared that information with a prosecutor, and, in one
instance, ‘‘well in advance’’ of the trial. The court over-
ruled defense counsel’s objection based on relevance.
Finally, Pagoni stated that his company’s website adver-
tised that it maintained ‘‘excellent relationships with
local and state law enforcement . . . .’’
Subsequently, and outside of the presence of the jury,
defense counsel moved for a mistrial based on these
matters. Specifically, he argued: ‘‘[T]here were some
questioning early on in the examination of Mr. Pagoni
with respect to the disclosure of the oral statement—
yeah, it was relating to the contents of the oral statement
in that it questioned along the lines that [defense coun-
sel] just disclosed that last night. I think that’s improper,
Your Honor, and I objected because I thought it was
improper. I think it impermissibly impugns my charac-
ter [and] integrity. The discovery rules aren’t really
something for the jury to consider. Other than me taking
the stand to explain it to the jury, there’s no real way
to rebut that. There’s no witness that I’m prepared to
call that can explain why that happened or our position
with it so it paints the defense and in particularly me
in a negative light in front of the jury. I think it is
detrimental to my client’s right to a fair trial so that is
my objection and just in case I need to do it for the
record, Your Honor, I would ask for a mistrial based
on that improper comment and the impact it may have
to my client’s right to a fair trial.’’
The prosecutor countered that the questions were
not intended to impugn the integrity of defense counsel,
nor did they do so; rather, they contrasted the statement
on Pagoni’s website and what had occurred in the pres-
ent case with respect to the disclosure of Mikuski’s
purported statement. The court, after noting its agree-
ment with the prosecutor, stated: ‘‘What [the prosecu-
tor] established was a fact, that he only received the
information on the eve of trial. That was a simple fact.
As to whether it was improper or not, there’s no evi-
dence before the jury as to whether it was improper
or not. There’s no evidence and nor should there be
that the jurors know the rules of the Practice Book,
the rules of discovery, when statements should be pro-
duced. It also is appropriate because the state only had
the opportunity to do whatever investigation it could
yesterday and the questioning serves to explain to the
jury why the investigation of Mr. Pagoni took place
yesterday. . . . And so [the state has] the right to estab-
lish why [it] didn’t meet with Mr. Pagoni until shortly
before he testified.’’
‘‘We are mindful . . . of the unique responsibilities
of the prosecutor in our judicial system. . . . [T]he
prosecutor is expected to refrain from impugning,
directly or through implication, the integrity or institu-
tional role of defense counsel.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Outing, 298
Conn. 34, 82, 3 A.3d 1 (2010), cert. denied, 562 U.S.
1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011); see also
State v. Fasanelli, 163 Conn. App. 170, 180, 133 A.3d
921 (2016); State v. Kendall, 123 Conn. App. 625, 643,
2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521
(2010).
We agree that the challenged actions of the prosecu-
tor during the cross-examination of Pagoni did not
impugn the integrity of defense counsel. The thrust of
the prosecutor’s inquiry was on the actions of Pagoni,
and not of defense counsel. Specifically, the prosecutor
highlighted for the jury the contrast of the statements
on his company’s website and Pagoni’s actions in the
present case. This line of inquiry served to challenge
Pagoni’s credibility, rather than to demean the integrity
or role of defense counsel. See State v. Fasanelli, supra,
163 Conn. App. 180 (distinction between argument that
disparages integrity or role of defense counsel and one
that disparages theory of defense); State v. Kendall,
supra, 123 Conn. App. 643–44 (prosecutor’s closing
argument highlighted difference between state’s and
defendant’s versions and inferences of case). Addition-
ally, we note that the prosecutor did not mention our
rules of practice regarding the timing of discovery mate-
rials to the jury. For these reasons, we conclude that the
defendant has failed to establish that any impropriety
occurred during the prosecutor’s cross-examination
of Pagoni.
The defendant next argues that two instances of pros-
ecutorial impropriety occurred during closing argu-
ment. ‘‘[O]ur Supreme Court has acknowledged that
prosecutorial impropriety of a constitutional magnitude
can occur in the course of closing arguments. In
determining whether such [impropriety] has occurred,
the reviewing court must give due deference to the fact
that [c]ounsel must be allowed a generous latitude in
argument, as the limits of legitimate argument and fair
comment cannot be determined precisely by rule and
line, and something must be allowed for the zeal of
counsel in the heat of argument. . . . While a prosecu-
tor may argue the state’s case forcefully, such argument
must be fair and based upon the facts in evidence and
the reasonable inferences to be drawn therefrom. . . .
Consequently, the state must avoid arguments which
are calculated to influence the passions or prejudices
of the jury, or which would have the effect of diverting
the jury’s attention from [its] duty to decide the case
on the evidence.’’ (Internal quotation marks omitted.)
State v. Carey, 187 Conn. App. 438, 454–55, 202 A.3d
1067 (2019), aff’d, Conn. , A.3d (2020).
During closing argument, the prosecutor stated: ‘‘It
is extremely important when you reach your verdict
that feelings of sympathy don’t come into play. And
again, we’re asking for something that might be counter-
intuitive for some of you. Some people may come in
here and say, listen, it is what it is. I call it how I see
it and that’s it. It’s not a big problem for me. Some
people may say that and then not realize that sympathy
does, kind of, trickle into your deliberations, we’re
humans. Some people come in and say, no, I know it’s
going to be an issue, but I can put it out of my mind
and I’m sure they can. It’s extremely important that you
don’t sit there when you deliberate on this case and
say geez, [the defendant] seems like an old guy. He
behaved himself well in court. You know, wasn’t a lot
of drugs. I can’t say guilty even though the state proved
its case, if you feel the state proved its case. You can’t
do that.’’ (Emphasis added.)
After the arguments of counsel had been completed,
defense counsel objected to the prosecutor’s comment
regarding the in-court behavior of the defendant. He
argued that this comment suggested that the prosecutor
had knowledge of how the defendant may have acted
outside of the courtroom and, thus, amounted to a com-
ment based on facts not presented to the jury. The court
determined that the comment constituted a compliment
and was made in the context that the jurors should not
allow sympathy to play any role in their deliberations,
and thus was permissible.
Our Supreme Court has noted that, ‘‘[w]hile the privi-
lege of counsel in addressing the jury should not be
too closely narrowed or unduly hampered, it must never
be used as a license to state, or to comment upon, or
to suggest an inference from, facts not in evidence, or
to present matters which the jury ha[s] no right to
consider.’’ (Internal quotation marks omitted.) State v.
Luster, supra, 279 Conn. 429; see also State v. Fernan-
dez, 169 Conn. App. 855, 869, 153 A.3d 53 (2016) (when
prosecutor suggests facts not in evidence, there is risk
that jury may conclude he has independent knowledge
of fact that could not be presented during trial); State
v. Campbell, 141 Conn. App. 55, 66, 60 A.3d 967 (state-
ments regarding facts that have not been proven amount
to unsworn testimony and are not subject of proper
closing argument), cert. denied, 308 Conn. 933, 64 A.3d
331 (2013). It also recognized that ‘‘closing arguments
of counsel . . . are seldom carefully constructed in
toto before the event; improvisation frequently results
in syntax left imperfect and meaning less than crystal
clear. While these general observations in no way justify
prosecutorial [impropriety], they do suggest that a court
should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging mean-
ing or that a jury, sitting through lengthy exhortation,
will draw that meaning from the plethora of less dam-
aging interpretations.’’ (Emphasis added; internal quo-
tation marks omitted.) State v. Luster, supra, 441.
We conclude that the prosecutor’s comment regard-
ing the defendant’s in-court behavior was not improper.
This remark was made in the context of the prosecutor’s
proper comments that the jurors were required to put
aside any sympathy for the defendant, due to his age,
and to decide the case based on the evidence presented.
See State v. James E., 154 Conn. App. 795, 828, 112
A.3d 791 (2015), aff’d, 327 Conn. 212, 173 A.3d 380
(2017). Further, the challenged comment focused solely
on the defendant’s good in-court behavior and did not
suggest, in any manner, any sort of illicit or untoward
out-of-court conduct. We decline to infer the most dam-
aging interpretation of the prosecutor’s comment.
The second challenged comment during closing argu-
ment occurred during the prosecutor’s summary of the
narcotics transaction. Specifically, the prosecutor
stated: ‘‘[Faulkner] believed [that Mikuski and Roig]
were about to make a drug deal, purchase drugs. And
you know what, he was right. The evidence bears it out
because she had the drugs in her hand. Literally, in her
hand. She hadn’t even put them in her pocket or put
in her purse with all the paraphernalia.
‘‘Yes, Sarah Mikuski, she lied. Lied to the police, she
stole, she lied to her friend. She was open and honest
with that. Well, I don’t want to use the word honest.
It’s for you to decide whether she was open and honest.
But [defense counsel] thought you could believe her,
certainly, when she says—that she stole, that she lied,
she lied to her to her friends—she did this, she did that.
So she was open about that.’’ (Emphasis added.)
Outside of the presence of the jury, defense counsel
objected to the prosecutor’s comment that Mikuski was
‘‘open and honest.’’ The prosecutor acknowledged that
he ‘‘inartfully’’ commented but claimed that it consti-
tuted fair argument to defense counsel’s comments
regarding Mikuski. The court disagreed with the prose-
cutor that his statement constituted a fair response, but
noted that he had corrected it immediately.
‘‘[A] prosecutor may not express his own opinion,
directly or indirectly, as to the credibility of the wit-
nesses. . . . Nor should a prosecutor express his opin-
ion, directly or indirectly, as to the guilt of the defen-
dant. . . . 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.’’ (Internal quotation marks omitted.) State v.
Luster, supra, 279 Conn. 435; see also State v. Williams,
200 Conn. App. 427, 440, 238 A.3d 797, cert. denied, 335
Conn. 974, 240 A.3d 676 (2020); State v. Jerrell R., 187
Conn. App. 537, 553, 202 A.3d 1044, cert. denied, 331
Conn. 918, 204 A.3d 1160 (2019).
Assuming, without deciding, that the prosecutor’s
‘‘open and honest’’ comment was improper, we con-
clude that the defendant failed to establish a deprivation
of his due process right to a fair trial. See State v.
Papantoniou, 185 Conn. App. 93, 108, 196 A.3d 839,
cert. denied, 330 Conn. 948, 196 A.3d 326 (2018); State
v. Aviles, 154 Conn. App. 470, 486, 106 A.3d 309 (2014),
cert. denied, 316 Conn. 903, 111 A.3d 471 (2015); see
generally State v. McCoy, 331 Conn. 561, 571 n.4, 206
A.3d 725 (2019). Considering the Williams factors, we
conclude that the challenged comment was not severe,
was isolated, was corrected by the prosecutor immedi-
ately, and was ameliorated by a specific jury charge.23
We also note that much of Mikuski’s testimony was
corroborated by other witnesses, namely, Roig and
Faulkner. For these reasons, we conclude that the
defendant failed to establish a violation of his due pro-
cess right to a fair trial. Accordingly, his claim of prose-
cutorial impropriety must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Mikuski testified that, in July, 2017, she was using crack cocaine and her-
oin.
2
Mikuski had planned to walk to her mother’s home, which was nearby,
where she and Roig would then smoke the crack cocaine purchased from
the defendant.
3
Joseph Voytek, a forensic examiner employed by the Department of
Emergency Services and Public Protection, testified that he had examined
the seized substance and determined that it was cocaine in a rock form and
weighed 0.218 grams.
4
Faulkner stated that crack cocaine was sold at a rate of $10 per tenth
of a gram, so that a ‘‘30’’ meant 0.3 grams of crack cocaine and would sell
for $30, while 0.2 grams of the narcotic substance, often referred to as a
‘‘doub,’’ would sell for $20.
5
General Statutes § 21a-277 (a) (1) provides in relevant part: ‘‘No person
may . . . sell . . . dispense . . . offer, give . . . to another person,
except as authorized in this chapter, any controlled substance that is (A)
a narcotic substance . . . .’’
6
In this e-mail, defense counsel represented to the prosecutor that Pagoni
would testify that he had spoken in person with Mikuski at approximately
1 p.m. on March 5, 2018, and that she admitted that (1) on July 13, 2017,
she possessed narcotics before meeting with the defendant, (2) she was
going to provide the defendant with narcotics, (3) she did not see Faulkner
in the unmarked police vehicle prior to meeting with the defendant, (4) she
and Roig met the defendant and gave him narcotics, and (5) she and Roig
turned around and started walking when Faulkner stopped them. Defense
counsel also indicated that Pagoni had not obtained a written statement
from Mikuski.
7
Practice Book § 40-15 provides: ‘‘The term ‘statement’ as used in Sections
40-11, 40-13 and 40-26 means: (1) A written statement made by a person
and signed or otherwise adopted or approved by such person; or (2) A
stenographic, mechanical, electrical, or other recording, or a transcription
thereof, which is a substantially verbatim recital of an oral statement made
by a person and recorded contemporaneously with the making of such oral
statement.’’ See also State v. Johnson, 288 Conn. 236, 277–78, 951 A.2d
1257 (2008).
8
‘‘The work product rule protects an attorney’s interviews, statements,
memoranda, correspondence, briefs, mental impressions, personal beliefs
and countless other tangible and intangible items. . . . Work product can
be defined as the result of an attorney’s activities when those activities have
been conducted with a view to pending or anticipated litigation.’’ (Citation
omitted; internal quotation marks omitted.) Ullman v. State, 230 Conn. 698,
714–15, 647 A.2d 324 (1994); see also Metropolitan Life Ins. Co. v. Aetna
Casualty & Surety Co., 249 Conn. 36, 51 n.17, 730 A.2d 51 (1999) (attorney
work product doctrine encompasses work that is essentially result of attor-
ney’s activities when conducted with view towards litigation).
9
Practice Book § 40-13 (b) provides: ‘‘Upon written request by the prose-
cuting authority, filed in accordance with Section 41-5 and without requiring
any order of the judicial authority, the defendant, subject to Section 40-40
et seq., shall promptly, but no later than forty-five days from the filing of
the request, unless such time is extended by the judicial authority for good
cause shown, disclose to the prosecuting authority the names and, subject
to the provisions of subsection (g) of this section, the addresses of all
witnesses whom the defendant intends to call in the defendant’s case-in-
chief and shall additionally disclose to the prosecuting authority any
statements of the witnesses other than the defendant in the possession of
the defendant or his or her agents, which statements relate to the subject
matter about which each witness will testify.’’ (Emphasis added.)
10
Practice Book § 40-5 provides: ‘‘If a party fails to comply with disclosure
as required under these rules, the opposing party may move the judicial
authority for an appropriate order. The judicial authority hearing such a
motion may enter such orders and time limitations as it deems appropriate,
including, without limitation, one or more of the following: (1) Requiring
the noncomplying party to comply; (2) Granting the moving party additional
time or a continuance; (3) Relieving the moving party from making a disclo-
sure required by these rules; (4) Prohibiting the noncomplying party from
introducing specific evidence; (5) Declaring a mistrial; (6) Dismissing the
charges; (7) Imposing appropriate sanctions on the counsel or party, or
both, responsible for the noncompliance; or (8) Entering such other order
as it deems proper.’’ See also State v. Rabindranauth, 140 Conn. App. 122,
136, 58 A.3d 361, cert. denied, 308 Conn. 921, 62 A.3d 1134 (2013).
We note that Practice Book § 40-5 vests the trial court with broad discre-
tion to fashion an appropriate remedy for noncompliance with discovery.
See State v. Respass, 256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534
U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001). ‘‘In determining what
sanction is appropriate for failure to comply with court ordered discovery,
the trial court should consider the reason why disclosure was not made,
the extent of prejudice, if any, to the opposing party, the feasibility of
rectifying that prejudice by a continuance, and any other relevant circum-
stances. . . . Suppression of relevant, material and otherwise admissible
evidence is a severe sanction which should not be invoked lightly. . . . As
with any discretionary action of the trial court, appellate review requires
every reasonable presumption in favor of the action, and the ultimate issue
for us is whether the trial court could have reasonably concluded as it did.’’
(Citations omitted; internal quotation marks omitted.) State v. Cooke, 134
Conn. App. 573, 578–79, 39 A.3d 1178, cert. denied, 305 Conn. 903, 43 A.3d
662 (2012).
11
Defense counsel attached a copy of his January 9, 2019 e-mail to the
prosecutor to this memorandum of law as Exhibit A. He also attached, as
Exhibit B, a copy of the Pagoni memorandum. This memorandum, dated
March 5, 2018, stated in part: ‘‘On March 5, 2018 at approximately 1300 hrs,
this Investigator met [Mikuski] . . . . The interview was conducted away
from her home within the Investigator’s vehicle, specifically, the Wendy’s
restaurant parking area . . . .
‘‘In her verbal statement, [Mikuski] stated that she met up with [the
defendant] on the day of her arrest, but had the drugs on her already. She
stated she walked east on East Main Street with Roig to meet with [the
defendant] to provide him some drugs. She stated at the time she did not
see the officer or his unmarked vehicle. She stated she and Roig did meet
with [the defendant] and gave some drugs to him. They turned around and
headed west on East Main Street at which point the officer stopped them.
‘‘When questioned if Roig would support her statement, [Mikuski] stated
yes, that he was presently in a rehabilitation facility . . . . When questioned
again who had the drugs, she confirmed she had them, not [the defendant].
‘‘When questioned where the police found the drugs on her, she stated
they were in her hand at the time she was stopped.’’
12
During the jury charge, the court instructed the jury: ‘‘Some testimony
has been allowed for a limited purpose. Testimony that was limited to a
specific purpose can be considered only as it relates to the limits for which
it was allowed, and cannot be considered in finding any other facts as to
any other issues.
‘‘Specifically, the testimony offered through Benjamin Pagoni is limited
to the purpose of impeaching Sarah Mikuski’s testimony that she bought
cocaine from the defendant. It is not admissible, and may not be used to
find that Sarah Mikuski sold cocaine to the defendant.’’
13
Practice Book § 42-53 (a) provides: ‘‘Upon motion of the defendant, the
judicial authority may grant a new trial if it is required in the interests of
justice. Unless the defendant’s noncompliance with these rules or with other
requirements of law bars him or her asserting the error, the judicial authority
shall grant the motion: (1) For an error by reason of which the defendant
is constitutionally entitled to a new trial; or (2) For any other error which the
defendant can establish was materially injurious to him or her.’’ (Emphasis
added.) See also State v. McCoy, 331 Conn. 561, 589–90, 206 A.3d 725 (2019).
14
As noted previously, the state argued in its appellate brief, in the alterna-
tive, that the Pagoni memorandum constituted Pagoni’s statement and, there-
fore, should have been disclosed to the prosecutor. As a result of our
conclusion that the defendant failed to establish harm, we need not address
the state’s alternative argument.
15
Mikuski stated that, in her experience, sellers of narcotics did not like
to text or put things in writing to avoid incriminating themselves.
16
Faulkner further testified that he had searched Roig and found neither
drugs nor money on his person.
17
During this portion of Pagoni’s testimony, defense counsel did not object
on the basis of improper opinion testimony. See part II of this opinion.
18
The defendant subsequently identified these topics in his motion for
new trial as follows: ‘‘Drug dealers normally do not sell inside their own
home and/or apartment . . . . Drug users can get ‘dope sick’ when they
do not have ready access to drugs . . . . Street-level drug addicts are not
wealthy . . . . Drug dealers sometimes carry scales to weigh their product
. . . . Drug dealers usually have more than one cell phone . . . . Drug
dealers typically carry various amount[s] of small denominations of cash
. . . . Drug dealers sometimes carry weapons . . . . Drug users usually
carry paraphernalia . . . and . . . [a]s between dealers and addicts, the
power in the relationship rests with the dealer.’’
19
Both our Supreme Court and this court, in the context of a prosecutorial
impropriety analysis, have stated: ‘‘We are mindful throughout this inquiry,
however, of the unique responsibilities of the prosecutor in our judicial
system. A prosecutor is not only an officer of the court, like every other
attorney, but is also a high public officer, representing the people of the
[s]tate, who seek impartial justice for the guilty as much as for the innocent.
. . . [The prosecutor’s] conduct and language in the trial of cases in which
human life or liberty are at stake should be forceful, but fair, because he
[or she] represents the public interest, which demands no victim and asks
no conviction through the aid of passion, prejudice or resentment. If the
accused be guilty, he [or she] should [nonetheless] be convicted only after
a fair trial, conducted strictly according to the sound and [well established]
rules which the laws prescribe.’’ (Internal quotation marks omitted.) State
v. A. M., 324 Conn. 190, 205, 152 A.3d 49 (2017); State v. Reddick, 174 Conn.
App. 536, 559–60, 166 A.3d 754, cert. denied, 327 Conn. 921, 171 A.3d 58
(2017), cert. denied, U.S. , 138 S. Ct. 1027, 200 L. Ed. 2d 285 (2018);
see also State v. Owen, 331 Conn. 658, 668–69, 207 A.3d 17 (2019) (prosecu-
tors held to higher standard than other attorneys). Because a prosecutor is
held to a higher standard of conduct, we note that care must be taken to
ensure that the state adheres to both the letter and the spirit of a stipulation
entered into with a criminal defendant during a trial.
20
‘‘Expert testimony should be admitted when: (1) the witness has a
special skill or knowledge directly applicable to a matter in issue, (2) that
skill or knowledge is not common to the average person, and (3) the testi-
mony would be helpful to the court or jury in considering the issues. . . .
In other words, [i]n order to render an expert opinion the witness must be
qualified to do so and there must be a factual basis for the opinion. . . .
‘‘It is well settled that [t]he true test of the admissibility of [expert]
testimony is not whether the subject matter is common or uncommon, or
whether many persons or few have some knowledge of the matter; but it
is whether the witnesses offered as experts have any peculiar knowledge
or experience, not common to the world, which renders their opinions
founded on such knowledge or experience any aid to the court or the jury
in determining the questions at issue. . . . Implicit in this standard is the
requirement . . . that the expert’s knowledge or experience . . . be
directly applicable to the matter specifically in issue.’’ State v. Brett B., 186
Conn. App. 563, 600–601, 200 A.3d 706 (2018), cert. denied, 330 Conn. 961,
199 A.3d 560 (2019).
21
See, e.g., State v. Brett B., 186 Conn. App. 600, 200 A.3d 706 (2018)
(deferential standard of review applies to appellate review of rulings regard-
ing admissibility of expert testimony), cert. denied, 330 Conn. 961, 199 A.3d
560 (2019); State v. Edward M., 135 Conn. App. 402, 409, 41 A.3d 1165
(abuse of discretion standard applies to claims regarding scope of cross-
examination), cert. denied, 305 Conn. 914, 46 A.3d 172 (2012).
22
This court has stated: ‘‘[T]he appellate harmless error doctrine is rooted
in [the] fundamental purpose of our criminal justice system—to convict the
guilty and acquit the innocent. The harmless error doctrine recognizes the
principle that the central purpose of a criminal trial is to decide the factual
question of the defendant’s guilt or innocence . . . and promotes public
respect for the criminal process by focusing on the underlying fairness of
the trial rather than on the virtually inevitable presence of immaterial error.’’
(Internal quotation marks omitted.) State v. Maner, 147 Conn. App. 761,
772, 83 A.3d 1182, cert. denied, 311 Conn. 935, 88 A.3d 550 (2014).
23
The court instructed the jury: ‘‘You are the sole judge of the facts. It is
your duty to find the facts. You are to recollect and weigh the evidence and
form your own conclusions as to what the ultimate facts are. . . . The law
prohibits the [prosecutor] or defense counsel from giving personal opinions
as to whether the defendant is guilty or not guilty. It is not their assessment
of the credibility of witnesses that matter, only yours. . . . You will decide
what the facts are from the evidence that was presented in the court-
room. . . .
‘‘Now in deciding what the facts are, you must consider all of the evidence.
In doing this, you must decide which testimony to believe and which testi-
mony not to believe. You may believe all, none or part of any witness’
testimony. In making that decision, you may take into account a number
of factors including the following: Was the witness able to see, or hear, or
know the things about which the witness testified? How well was the witness
able to recall and describe these things? What was the witness’ manner
while testifying? Did the witness have an interest in the outcome of the
case or any bias or prejudice concerning any party or any matter involved
in the case? Was the witness’ testimony contradicted by what the witness
has said or done at any time, or by the testimony of other witnesses, or by
other evidence?
‘‘If you should think that a witness has testified falsely in some respect,
you should carefully consider whether you should rely upon any of his or
her testimony. . . .
‘‘Now in weighing the testimony of an accomplice who is a self-confessed
criminal, you should consider that fact. It may be that you would not believe
a person who had committed a crime as readily as you would believe a
person of good character. In weighing the testimony of an accomplice who
has not yet been sentence or whose case had not yet been disposed of or
who has not been charged with offenses in which the state has evidence,
you should keep in mind that she may in her own mind be looking for some
favorable treatment in the sentence or disposition of her own case or hoping
not to be arrested. Therefore, she may have such an interest in the outcome
of this case that her testimony may have been colored by the fact. Therefore,
you must look with particular care at the testimony of an accomplice and
scrutinize it very carefully before you accept it.
‘‘There are many offenses that are of such a character that the only person
capable of giving useful testimony are those who are themselves implicated
in the crime. It is for you to decide what credibility you will give to a witness
who has admitted her involvement in criminal wrongdoing, whether you
will believe or disbelieve the testimony of a person who by her own admis-
sion had committed or contributed to the crime charge by the state here.
Like all other questions of credibility, this is a question you must decide
based on all the evidence presented to you.’’