194 Conn.App. 394
Conn. App. Ct.2019Background:
- Victim Lilliana Restrepo was shot in the forehead in defendant Anthony Pernell’s bedroom on March 17, 2015; Pernell was charged with murder (and pleaded guilty earlier to narcotics and weapons counts).
- Pernell gave multiple statements to police (a recorded interview was entered in evidence) including admitting he put the gun in the victim’s hand and offering inconsistent accounts (at one point saying he made it look like a suicide).
- Gunshot residue testing found residue consistent with recent handling on Pernell’s hands but only lead particles on the victim’s hands; forensic evidence also supported a close‑range forehead shot.
- Defense theory at trial was accidental death/suicide; prosecution argued intentional killing, pointing to Pernell’s post‑shooting conduct (not answering the victim’s phone, alleged manipulation of the scene, inconsistent statements).
- On appeal Pernell argued six prosecutorial improprieties in closing (expressing personal opinion, factual statements outside the record, and emotional appeals) that he says deprived him of due process; the trial court had instructed the jury on lesser included offenses.
- The Appellate Court found most challenged remarks proper or permissible inferences from the evidence; it conceded two brief remarks were improper but held they were not prejudicial and affirmed the conviction.
Issues:
| Issue | State's Argument | Pernell's Argument | Held |
|---|---|---|---|
| Prosecutor’s comment on Pernell’s demeanor during police interview | Invited jury to use commonsense; demeanor (calm/cool) was observable on the recorded interview | Comment improperly opined about how a grieving person should behave; no evidence about PCP effects | Not improper — prosecutor argued reasonable inference from admitted video evidence |
| Prosecutor saying “I would have a few choice words” re: victim’s mother / failing to answer phone | Rhetorical device asking jurors to put themselves in situation; based on defendant’s testimony about phone calls and his not answering | Impermissible personal anecdote based on prosecutor’s own experience | Not improper — equivalent to asking jurors what they would do; grounded in record evidence |
| Suggestion Pernell searched victim’s purse and remark “It’s shameful” | Proper rebuttal to defense inference that letter in purse corroborated suicide story; there was time/opportunity and evidence of scene manipulation | Improper emotional appeal and personal opinion; statement not supported by direct evidence | “It’s shameful” was improper (state conceded) but harmless given invited inference, lack of objection, briefness, and curative instructions |
| Comments about gunshot residue, use of phrases “kill shot” and “executed” | Residue supported inference victim’s hands were not on gun; descriptive language matched evidence | Argued unfairly overstated or contradicted expert testimony and appealed to emotions with “kill shot”/“executed” | Residue inference and “kill shot” were permissible; “executed” was improper (Albino) but, along with other minor improprieties, harmless and not a due process violation |
Key Cases Cited
- Berger v. United States, 295 U.S. 78 (U.S. 1935) (prosecutor must not use improper methods calculated to obtain wrongful conviction)
- State v. Rowe, 279 Conn. 139 (Conn. 2006) (prosecutor may strike hard blows but not foul ones)
- State v. Stevenson, 269 Conn. 563 (Conn. 2004) (prosecutor may comment on evidence and argue reasonable inferences)
- State v. Bell, 283 Conn. 748 (Conn. 2007) (permitting jury role-playing to assess reasonableness of conduct)
- State v. Williams, 204 Conn. 523 (Conn. 1987) (factors for assessing prejudicial effect of prosecutorial impropriety)
- State v. Albino, 312 Conn. 763 (Conn. 2014) (use of terms like "executed" can improperly appeal to juror passion when lesser‑included offenses are warranted)