State v. Albino, 130 Conn. App. 745

Defendant Albino was convicted by a jury of murder under Conn. Gen. Stat. § 53a-54a (a) for shooting Christian Rivera on Locust Street in Waterbury.
Prosecution presented evidence that Albino was the gunman who fired eight times at Rivera at close range, causing Rivera’s death, after Rivera approached with hands in pockets and a hooded sweatshirt.
Albino admitted in a September 20, 2006 statement to police that he intended to shoot Rivera after Rivera ignored commands to remove his hands and hood.
Albino asserted a self-defense theory at trial; the jury rejected it and found murder, and Albino was sentenced to 50 years’ imprisonment.
Albino moved for a jury instruction on criminally negligent homicide as a lesser included offense; the court denied part of the request and instructed on other lesser offenses.
Prosecution engaged in a series of alleged improprieties during trial, including repeatedly calling Rivera ‘the victim’ and referring to the homicide as ‘murder,’ which the court found improper but not dispositive of fairness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by not instructing on criminally negligent homicide	Albino argued Whistnant entitles him to a lesser included offense instruction.	Albino contends evidence supported a possible conviction for criminally negligent homicide.	No reversible error; evidence did not warrant the lesser charge.
Whether prosecutorial improprieties violated due process	Albino contends repeated use of guilt-laden terms, Singh violation, improper appeals to emotion, and denigration of defense counsel deprived fairness.	Albino maintains these improprieties tainted the trial and required a new trial.	Improprieties occurred but did not amount to a due process violation; trial fair overall.
Whether Singh's rule regarding asking witnesses to comment on others’ veracity was violated	Albino asserts the prosecutor improperly urged the jury to find all witnesses wrong to acquit.	Albino argues Singh prohibits such framing in closing argument.	Prosecutor’s closing argument violated Singh; however, not reversible given overall trial fairness.
Whether the trial court properly instructed on reasonable doubt	Albino claims the oral instruction misled jurors about reasonable doubt due to omission of a word in reading.	State contends written and projected instructions mitigated any potential confusion.	No reasonable likelihood of misguidance; overall charge adequate.

State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (Conn. 1980) (establishes four-prong test for lesser included offenses)
State v. Jones, 289 Conn. 742, 961 A.2d 322 (Conn. 2008) (de novo review of instructional eligibility; clarifies Whistnant prongs)
State v. Rasmussen, 225 Conn. 55, 621 A.2d 728 (Conn. 1993) (third and fourth Whistnant prongs require sufficient evidence for lesser offense)
State v. Singh, 259 Conn. 693, 793 A.2d 226 (Conn. 2002) (prohibits asking witnesses to comment on others’ veracity; closing argument limits)
State v. Thompson, 266 Conn. 440, 832 A.2d 626 (Conn. 2003) (prosecutorial improprieties evaluated against Thompson standard)
State v. Warholic, 278 Conn. 354, 897 A.2d 569 (Conn. 2006) (distinguishes prosecutor’s use of victim terminology; closing argument context matters)
People v. Price, 1 Cal.4th 324, 821 P.2d 610 (Cal. 1991) (prosecutor may argue evidence after trial; avoid unmerited inference during testimony)
Jackson v. State, 600 A.2d 21 (Del. 1991) (limits on repeated victim labeling; depends on context)
State v. Devey, 138 P.3d 95 (Utah 2006) (prosecutor’s use of victim terminology where crime disputed)
State v. Cortes, 276 Conn. 241, 885 A.2d 153 (Conn. 2005) (limits on use of ‘victim’ in certain contexts)