State v. AlbinoState v. Albino
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Pamela S. Nagy, assigned counsel, for the appellee in Docket No. SC 18866 and the appellant in Docket No. SC 18867 (defendant).
McDONALD, J. Following our grants of certification, the defendant, Jonathan Albino, and the state separately appealed from the Appellate Court’s judgment affirming the defendant’s conviction of murder in violation of
The Appellate Court’s opinion sets forth the following facts that the jury reasonably could have found. ‘‘[The defendant] worked daily selling heroin behind a three-story apartment building located at 132 Locust Street in Waterbury (building). He [only speaks Spanish], and most of his customers . . . spoke Spanish. The heroin selling operation was run by William Ramos . . . . Ramos employed approximately five or six young men, including the defendant . . . . During his shift, which usually was from 3 to 10 p.m., the defendant carried a loaded firearm.
‘‘On September 18, 2006, the defendant worked [past] his usual shift . . . . During that time [people attending a party in the building] were congregating both inside and outside the building, while loud music played. Ramos, who testified for the state, was on the second floor of the building overseeing his drug selling operation. At approximately 10:30 p.m., the defendant was sitting on the stairs just above the second floor landing when the victim, Christian Rivera, approached the building on a bicycle [and then left the bicycle in front of the building]. When Rivera approached the [dimly lit] stairwell, he had his hands in his pockets, and he was wearing a hooded sweatshirt with the hood up. The defendant descended the stairwell, thinking that Rivera was there to purchase heroin.
‘‘As Rivera approached the landing, the defendant, who could not see Rivera’s face, instructed him in Spanish to remove his hands from his pockets and to take down the hood of his sweatshirt. Rivera did not respond to the defendant’s instructions and continued his
‘‘Immediately after the shooting, the defendant ran upstairs and gave the firearm to his friend, Angel Garcia, and then left the scene. The defendant removed the red T-shirt he had been wearing and discarded it into some bushes. He later telephoned his friend, Jose Velez, telling Velez that he needed to get away because he had shot someone. . . . During [a subsequent car] ride [accompanying Velez to New York], the defendant told Velez and the other men in the vehicle, Luis Rios and Zachary Gonzalez, that he had shot a man on Locust Street because the man would not respond to his orders. . . . [The following day, the defendant learned that an arrest warrant had been issued for him, and on the evening of September 20, 2006, he turned himself in to the Waterbury police].
‘‘Thereafter, the defendant was advised, in Spanish, of his
In support of his theory, the defendant attempted to impeach the state’s witnesses regarding their accounts of his actions and statements. He also offered the following affirmative evidence. To explain his capacity to give a less than full and accurate statement to the police, he presented evidence of his low IQ, just above the threshold for mental retardation. To explain the eight shots fired, the defendant offered expert testimony regarding ‘‘reflex trigger pull,’’ a phenomenon that occurs when a person confronted with a life-threatening situation holds a gun so tightly that he may reflexively discharge numerous rounds before his mind can signal his hand to release the trigger. To bolster his robbery claim, the defendant offered hostile witness testimony from Rivera’s sister, who acknowledged that Rivera had been selling and using drugs and that he had been worried about a $240 drug debt. The defendant also offered evidence that Rivera had pleaded guilty to charges of attempt to commit assault in the third degree and reckless endangerment for conduct that had occurred two years before his death, for which he had received one year suspended sentences.
The court instructed the jury on the charged offense of murder, as well as the justification of self-defense, and on the lesser included offenses of manslaughter in the first degree with a firearm in violation of
The defendant directly appealed to this court from the judgment; see
We thereafter granted the defendant’s petition for certification to appeal, limited to the issue of whether the Appellate Court properly concluded that the defendant was not deprived of a fair trial. State v. Albino, 302 Conn. 941, 29 A.3d 466 (2011). We also granted the state’s petition for certification, limited to the issue of whether the Appellate Court improperly extended and applied this court’s holding in Singh to the prosecutor’s closing argument regarding the jury’s weighing of conflicting testimony. State v. Albino, 302 Conn. 940, 29 A.3d 466 (2011).
I
We first address the state’s appeal in light of a jurisdictional defect that mandates its dismissal. It is apparent upon further reflection that the state lacks the aggrievement necessary to appeal from the judgment of the Appellate Court.
It is settled law that a party must be aggrieved by the judgment in order to have standing to appeal therefrom. See Gold v. East Haddam, 290 Conn. 668, 676, 966 A.2d 684 (2009); see also
Although we recognize that the state is bound by the courts’ determinations of the limits of proper prosecutorial conduct, we now are persuaded that the state’s appeal falls into the second category, as the Appellate Court has affirmed the judgment in which the defendant was convicted of the greater offense charged by the state. This is not to say, however, that the state lacks any avenue to contest the Appellate Court’s determination as to prosecutorial impropriety. When, as in the present case, the adverse party is aggrieved and does appeal, the nonaggrieved party may raise such a claim as an alternative ground for affirmance. Id. Because this issue has been fully briefed by the parties and is intertwined with issues raised in the defendant’s appeal, we address the state’s claim in our resolution of that appeal. Accordingly, the state’s appeal is dismissed.
II
‘‘In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. . . . In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial.’’ (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Long, 293 Conn. 31, 36, 975 A.2d 660 (2009).
We first address those statements that the defendant contends should have been deemed improper by the Appellate Court and then turn to the statements that the state contends were proper, contrary to the Appellate Court’s conclusion. In light of those conclusions, we turn to the question of whether the sum of any improprieties deprived the defendant of a fair trial. For the reasons set forth subsequently in this opinion, although our conclusions differ from some of the Appellate Court’s conclusions as to the propriety of certain statements, we agree that the defendant was not deprived of a fair trial.
A
‘‘Prosecutorial impropriety can occur during both the cross-examination of witnesses and in the course of closing or rebuttal argument.’’ Id., 37. In reviewing claims of such impropriety, we apply well established standards. See generally State v. Medrano, 308 Conn. 604, 610–12, 619–21, 65 A.3d 503 (2013). Briefly stated,
1
Improper Appeals to the Jurors’ Emotions, Passions and Prejudices
We begin with the defendant’s claim that certain references to Rivera during closing argument were improper appeals to the jurors’ emotions, in that they either focused on factors that had nothing to do with the defendant’s guilt or innocence or used overly dramatic language.2 See State v. Camacho, 282 Conn. 328, 375, 924 A.2d 99 (recognizing that such statements are improper), cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007); State v. Alexander, 254 Conn. 290, 307, 755 A.2d 868 (2000) (same). It must be acknowledged that the line between comments that risk invoking the passions and prejudices of the jurors and those that are permissible rhetorical flourishes is not always easy to draw. The more closely the comments are connected to relevant facts disclosed by the evidence, however, the more likely they will be deemed permissible. See State v. Camacho, supra, 375 (‘‘[s]uch appeals should be avoided because they have the effect of diverting the [jurors’] attention from their duty to decide the case on the evidence’’ [internal quotation marks omitted]). Thus, we conclude that comments that Rivera was ‘‘peppered with bullets’’ and that ‘‘the first bullet tore into his body’’ were not improper as they are factually accurate descriptions of the evidence that were not unduly provocative.
Several other comments did, however, stray beyond that line. At oral argument before this court, the state conceded that the prosecutor improperly had argued that Rivera was alone as he approached the defendant and his crew but that ‘‘Rivera won’t be alone anymore, because you’re going to get this case.’’ See State v. Williams, 204 Conn. 523, 547, 529 A.2d 653 (1987) (‘‘[i]t is improper for the prosecutor to encourage the jury to identify with the victim’’). We also conclude that gratuitous comments about the defendant ‘‘executing’’ Rivera and committing ‘‘murder in cold blood’’ were improper, considering that the defendant’s evidence was deemed sufficient to warrant jury instructions on lesser included offenses inconsistent with a wholly unprovoked act of brutality that has been deemed by courts to justify the use of such terms. Compare State v. Medrano, supra, 308 Conn. 616 (prosecutor’s statement
In addition, we see no connection between the issues in the present case and the prosecutor’s comment regarding ‘‘the indignity of death’’ when showing the jury Rivera’s autopsy photograph. Because the lack of dignity in Rivera’s appearance has no relevance to the issues in the present case, this statement would seem calculated solely to appeal to the jurors’ emotions.3 Lacking relevance to the elements of the charged offenses, we disagree with the state that this comment falls within the rule permitting the prosecutor to argue an inference that the jury could have drawn entirely on its own based on the evidence presented. See State v. Stevenson, 269 Conn. 563, 585, 849 A.2d 626 (2004) (prosecutor properly argued that state’s witnesses did not have motive to lie, whereas defendant and his witnesses did have such motive).
2
Impugning Defense Counsel
We next turn to the defendant’s claim that the prosecutor improperly characterized defense counsel’s strategy in a manner to suggest that he employed tactics intended to mislead the jury.4 See State v. Orellana, 89 Conn. App. 71, 101, 872 A.2d 506 (distinguishing between improper argument disparaging integrity or role of defense counsel and proper argument disparaging theory of defense), cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). During trial, the defendant elicited evidence intended to call into question whether the
3
Bolstering the Witness’ Credibility
The defendant also contends that the prosecutor improperly bolstered the credibility of Carlos Ayala, a jailhouse informant testifying for the state.7 Ayala testified regarding a conversation he had had with the defendant in which the defendant’s account of the shooting was consistent with the statement he had given to the police, including the omission of any facts indicative of an attempted armed robbery. Before giving that testimony, Ayala acknowledged that he hoped to obtain favorable treatment from the state regarding pending charges in his own case, but stated that no one from the Office of the State’s Attorney had discussed his case or made any promises to him. In subsequent direct examination, the prosecutor made statements reiterating that the state had not promised Ayala anything in exchange for his testimony and that Ayala was free to change his story. See footnote 7 of this opinion. Then, in closing argument, the prosecutor stated: ‘‘[T]he state’s not promising anything to . . . Ayala and he
Because the prosecutor effectively testified to the state’s lack of any promises to Ayala in the guise of questioning, such statements were improper. See State v. Singh, supra, 259 Conn. 717 (‘‘[a] prosecutor . . . shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness’’ [internal quotation marks omitted]). Contrary to the Appellate Court’s conclusion, it is irrelevant to the impropriety analysis whether Ayala also testified that the state had offered him no promises in exchange for his testimony, although such a fact would bear on the ultimate due process question. By reiterating the lack of promises, the prosecutor impermissibly bolstered Ayala’s credibility. This inference was compounded by the statement in closing argument using the collective pronoun ‘‘we,’’ thus aligning Ayala with the state. ‘‘[Although a] prosecutor is permitted to comment [on] the evidence presented at trial and to argue the inferences that the jurors might draw therefrom, he is not permitted to vouch personally for the truth or veracity of the state’s witnesses.’’ (Internal quotation marks omitted.) State v. Payne, 260 Conn. 446, 454, 797 A.2d 1088 (2002); see also State v. Thompson, 266 Conn. 440, 462, 832 A.2d 626 (2003) (‘‘[A] prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . 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.’’ [Internal quotation marks omitted.]).
4
The Jury’s Duty to Convict Argument
Finally, the defendant claims that the prosecutor improperly argued that it was the jury’s duty to convict the defendant of the crime charged. We note, however, that the prosecutor actually indicated that, if the jury held the state to its burden of proof and considered the evidence, the jury had a duty to convict the defendant of murder rather than one of the lesser included offenses.8 We further note that, in his closing and rebuttal arguments, the prosecutor also argued to the jury that, if it believed that Rivera had confronted the defendant for the purpose of robbing him and that the defendant was justified in acting in self-defense, the jury should find him not guilty. Thus, the statement at issue does not suffer from the defect that this court previously has identified in cases in which the ‘‘do your duty’’ argument was linked to matters external to the case or unconnected to the evidence. See State v. Reynolds, 264 Conn. 1, 183, 836 A.2d 224 (2003) (‘‘it generally is improper for the state to argue that the jurors’ oath obligates them to return a particular verdict because such language poses a risk of diverting the jury from
Although we conclude that the particular comment in the present case was not improper, no doubt ‘‘[t]here is perhaps a fine line between a proper and improper ‘do your duty’ argument.’’ Id.
B
Having reviewed the statements that the defendant contends were improper, contrary to the conclusions of the Appellate Court, we now turn to the state’s claim that the Appellate Court improperly concluded that certain statements in the prosecutor’s closing argument violated the rule set forth in State v. Singh, supra, 259 Conn. 712, regarding characterizing witnesses’ testimony as ‘‘wrong.’’ The state contends that Singh did not extend this prohibition to closing argument. We conclude that the Appellate Court went too far in construing Singh as articulating a per se rule that applies
In the present case, the prosecutor stated in his closing argument: ‘‘Ladies and gentlemen, in order for you to find the defendant not guilty of the crime of murder, you have to find that everybody is wrong in this case. The police are wrong. The detectives who interviewed him are wrong. The defendant’s own friends and associates are wrong. . . . Yesenia Diaz is wrong, the interpreter. Right? And almost incredible, you’ve got to find that the defendant’s own statement is wrong, that he was wrong, because he didn’t tell the cops that he acted in self-defense. You can’t do that. You can’t do that.’’ (Emphasis added.)
Then, in his rebuttal argument, the prosecutor stated: ‘‘Now, ladies and gentlemen, remember the language the defendant used when he took the stand. He tells you that this statement is not a verbatim transcript of what was said in there. So what he’s done is he’s saying that . . . Yesenia Diaz has testified untruthfully. He’s testifying truthfully. She’s testifying untruthfully. And therein lies one of the central roles of the jury, right, you’ve got to decide whose credibility you believe. . . .
* * *
‘‘[Yesenia Diaz] is a window for you into the interview room. If you find that she’s not credible, then you find the defendant’s version credible, because they’re in complete conflict, aren’t they? They’re in conflict. Ladies and gentlemen, in order for you to find the defendant not guilty you have to find that every single person in this case is wrong. William Ramos, Edwin Gonzalez, Luis Rios, Aida Perez, Carlos Ayala, Detective Milford Hayes, who tells you how Edwin Gonzalez’ statement was taken. Detective George Tirado, Detective Mike Slavin . . . Yesenia Diaz and the defendant himself.’’ (Emphasis added.)
With this background in mind, we turn to our decision in State v. Singh, supra, 259 Conn. 693. In Singh, the defendant had contended that the prosecutor improperly asked him to characterize testimony of other witnesses during cross-examination and improperly emphasized that testimony in closing argument. Id., 702. Specifically, on cross-examination, the prosecutor repeatedly asked the defendant whether testimony that conflicted with his own was incorrect, made up, wrong or a lie. Id., 702–703. Then, in closing argument, the prosecutor argued that the defendant would have the jury believe that ‘‘ ‘everyone else’ ’’ whose account conflicted with his own or offered unfavorable testimony had lied. Id., 705–706. In addressing the defendant’s
‘‘Several reasons underlie the prohibition on such questions. First, it is well established that determinations of credibility are for the jury, and not for witnesses. . . . Consequently, questions that ask a defendant to comment on another witness’ veracity invade the province of the jury. . . . Moreover, [a]s a general rule, [such] questions have no probative value and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence. . . .
‘‘Second, questions of this sort also create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the witness has lied. . . . This risk is especially acute when the witness is a government agent in a criminal case. . . . A witness’ testimony, however, can be unconvincing or wholly or partially incorrect for a number of reasons without any deliberate misrepresentation being involved . . . such as misrecollection, failure of recollection or other innocent reason. . . .
‘‘Similarly, courts have long admonished prosecutors to avoid statements to the effect that if the defendant is innocent, the jury must conclude that witnesses have lied. . . . The reason for this restriction is that [t]his form of argument . . . involves a distortion of the government’s burden of proof. . . . Moreover, like the problem inherent in asking a defendant to comment on the veracity of another witness, such arguments preclude the possibility that the witness’ testimony conflicts with that of the defendant for a reason other than deceit.’’ (Citations omitted; footnotes omitted; internal quotation marks omitted.) Id., 706–10.
Ultimately, this court declined ‘‘the state’s invitation to carve out an exception to the rule that a witness may not be asked to characterize another witness’ testimony as a lie, mistaken or wrong’’ in cases in which the defendant’s testimony contradicts another witness’ testimony. Id., 712. This court then added: ‘‘Moreover, 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.’’ Id. We explained in a footnote to the first sentence that
Thus, in Singh, this court identified as its principal concern relating to asking a witness to characterize another witness’ testimony as wrong a concern that is not implicated in closing argument, namely, that such questions improperly invade the province of the jury to make credibility assessments. See id., 706–707. It was due to this concern that we declined to allow the prosecutor to use the term ‘‘wrong,’’ despite the fact that courts have recognized that this term is sufficiently broad to encompass various reasons other than lying that would explain conflicting testimony. Id., 708. In other words, irrespective of whether the prosecutor frames the question to ask a defendant whether another witness is wrong, mistaken or has lied, the question equally calls on the defendant to characterize the witness’ testimony. By contrast, 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. Moreover, by framing the argument in such a manner, the jury is free to conclude that the conflict exists due to mistake (misperception or misrecollection) or deliberate fabrication.
Therefore, we disagree with the clear implication in the Appellate Court’s decision in the present case that it would be improper under Singh for a prosecutor simply to state in closing argument that, where there are two directly conflicting accounts of an incident, one must be wrong. See State v. Albino, supra, 130 Conn. App. 766. On the other hand, we also disagree with the state that the use of the term ‘‘wrong’’ instead of ‘‘lying’’ always will be proper argument. Singh underscored a particular concern with argument that ‘‘involves a distortion of the government’s burden of proof.’’ (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 709. For this reason, we concluded that ‘‘closing arguments providing, in essence, that in order to find the defendant not guilty, the jury must find that witnesses had lied, are . . . improper.’’ (Emphasis added.) Id., 712. Thus, Singh left open the possibility that a prosecutor’s argument could make this suggestion to the jury without using the word ‘‘lying.’’
We conclude that, in the present case, although no single comment in isolation may have violated the rule articulated in Singh regarding closing argument, the comments viewed in totality did so. Indeed, the comments implicated many of the concerns that we had
The prosecutor’s argument also precludes the possibility that the jury could have either credited parts of both the testimony of state witnesses (including the defendant’s police statement) and the defendant’s trial testimony or reconciled evidence that the state claims was in direct conflict. While the state views the defendant’s failure to mention the gun or robbery threat to the police as directly conflicting with his trial testimony, the defendant’s statements to the police and others arguably can be reconciled with his testimony. The defendant told the police that he had shot Rivera after Rivera did not comply with the defendant’s commands to take his hands out of his pockets. The jury could have concluded that the defendant’s fear that Rivera would use the gun in his pocket would have been allayed if Rivera had obeyed the defendant’s command. In light of the testimony of the defendant’s expert regarding the defendant’s limited intellectual capacity, the jury may have believed that these two things—the gun in Rivera’s pocket and Rivera’s removal of his hands from his pockets—were inextricably linked in the defendant’s mind and, because of his inability to appreciate the need to volunteer such information to the police, the defendant simply answered the questions as he understood them. Although, for reasons set forth in part II C of this opinion, we do not believe that the jury would have drawn such a conclusion, it was improper for the prosecutor to argue to the jury that it would have to find that every witness was wrong in order to acquit the defendant.
C
In light of our conclusions set forth previously in this
When a defendant demonstrates improper questions or remarks by the prosecutor during the course of trial, the defendant bears the burden of showing that, ‘‘considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.’’ (Internal quotation marks omitted.) State v. Medrano, supra, 308 Conn. 620. ‘‘The question of whether the defendant has been prejudiced by prosecutorial [impropriety] . . . depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties.’’ State v. Thompson, supra, 266 Conn. 460. This assessment is made through application of ‘‘the factors set forth in State v. Williams, supra, 204 Conn. 540, with due consideration of whether that misconduct was objected to at trial. . . . These factors include: the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.’’ (Citation omitted; internal quotation marks omitted.) State v. Medrano, supra, 619–20.
We note at the outset that the defendant made no objection to any of these remarks and took no measures to seek curative instructions. Therefore, he ‘‘bears much of the responsibility for the fact that [these] claimed impropriet[ies] went uncured.’’ (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 402, 897 A.2d 569 (2006). Moreover, a fair implication can be inferred that the defendant did not view the remarks to be unduly prejudicial. See id. (‘‘defense counsel may elect not to object to arguments that he or she deems marginally objectionable for tactical reasons, namely, because he or she does not want to draw the jury’s attention to it or because he or she wants to later refute that argument’’ [internal quotation marks omitted]).
With respect to the strength of the curative measures adopted, the defendant’s failure to object or to ask for such measures to be taken deprived the court of an opportunity to address the improprieties with any specificity. Nonetheless, the court’s general instructions, a written copy of which was provided to the jury, likely mitigated the effect of some of the improprieties. The court instructed the jury that it should not be influenced by sympathy or prejudice, that the jury was the sole arbiter of facts, that attorneys’ arguments are not evidence, that conflicts in testimony may be due to factors other than dishonesty, and that it is proper to consider the credibility of a witness with pending charges in light of the witness’ interest in receiving favorable treatment from the state.
With respect to the severity of the improprieties, we conclude that the defendant’s failure to object is consistent with our view that many of the improprieties were just over the line of acceptable conduct.12
In the end, the defendant’s claim founders on the final factor of the Williams test, the strength of the state’s case. In particular, the physical evidence and the defendant’s own testimony demonstrate why there is not a reasonable likelihood that the jury’s verdict would have been different absent the improprieties. There is no dispute that the defendant shot Rivera, that he discharged eight bullets and that four of these hit Rivera. Not one of the bullets entered the front of Rivera’s body; all of the bullets entered Rivera’s back or his left side. Therefore, the position of Rivera’s body was not consistent with a posture of aggression but one of retreat.
According to the defendant’s own testimony, Rivera never acted in an aggressive manner toward him. The defendant conceded that Rivera’s purported statement asking for the drugs and the money was not made in
The defendant’s claim that Rivera came to the building to rob him also lacks credibility in light of the circumstances to which he and others testified: Rivera arrived by bicycle and numerous other people—partygoers and other armed drug dealers working for Ramos—were nearby. There is no evidence that the defendant called out to warn others that Rivera had a gun or to otherwise indicate that Rivera was there to do harm before he shot Rivera. Nor is there evidence that he warned others when fleeing the scene, which not only undermines his claim that Rivera had a gun but also his claim that Rivera was still standing when the defendant fled the scene.
Finally, the defendant’s statements to others strongly support the conclusion that the defendant fabricated the robbery. The defendant’s claim that his failure to include any mention of the attempted robbery in his statement to the police was due to his low IQ is undermined by the fact that the defendant purposefully lied in that statement regarding his drug dealing so as not to get either himself or Ramos into trouble. Even if the defendant’s intellectual limitations could have impacted his ability to appreciate the need to make a full disclosure in response to police questioning, it does not explain the fact that no friend or acquaintance with whom the defendant spoke about the shooting indicated that the defendant ever had mentioned that Rivera tried to rob him or that he thought Rivera had a gun. In light of all this evidence, as well as consciousness of guilt evidence, we conclude that the sum total of any improprieties did not deprive the defendant of a fair trial.
The appeal in SC 18866 is dismissed; the judgment of the Appellate Court in SC 18867 is affirmed.
In this opinion ROGERS, C. J., and EVELEIGH and VERTEFEUILLE, Js., concurred.
Notes
* * *
‘‘Isn’t that what [the defendant] told you? But I thought [Rivera] or I thought the man I shot might be chasing after me. That would be this guy, right, that’s peppered with bullet holes. Peppered with bullet holes. . . .
‘‘Now, ladies and gentlemen, one of the most difficult things about this case, or about any murder case, is the fact that you don’t know anything about the victim [Rivera]. The defense put in today two misdemeanor convictions. You don’t know anything about that. When you look at [Rivera] in this photograph it’s in the indignity of death, isn’t it? Right? But what you see there is a human being. If Christian Rivera used drugs, if he sold drugs and he were arrested and convicted, he should go to jail for that. But there’s been nothing presented in this case that would justify the defendant taking that nine millimeter pistol and executing him. Nothing.
‘‘Now, ladies and gentlemen, Christian Rivera can’t speak to you today, and he can’t tell you what he saw in the moments before the first bullet tore into his body. He can’t tell you which bullet hit him first. The only person that’s testified in this case that Christian Rivera tried to rob someone was the defendant.’’ (Emphasis added.)
The defendant also challenges this portion of the state’s rebuttal argument: ‘‘Now, ladies and gentlemen, when Christian Rivera went up the steps on that fatal night he was alone. He was all alone. The defendant had his crew behind him or his team. And in a few minutes, ladies and gentlemen, Christian Rivera won’t be alone anymore, because you’re going to get this case. You’re going to have the case in your hands and you’re going to decide what the facts are. Justice dictates that you return a verdict of guilty on murder.’’ (Emphasis added.)
Some courts have squarely stated that this analogy is improper; see, e.g., People v. Townsend, 136 Ill. App. 3d 385, 413–14, 483 N.E.2d 340 (1985); People v. Crawford, Docket No. 302648, 2012 WL 3139473, *6 (Mich. App. August 2, 2012), appeal denied, 493 Mich. 920, 823 N.W.2d 589 (2012); Hanson v. State, 72 P.3d 40, 49 (Okla. Crim. App. 2003); whereas others have considered the analogy proper in the context of the arguments as a whole. See, e.g., People v. Clark, Docket No. 281460, 2010 WL 4137437, *2 (Mich. App. October 21, 2010) (not improper when viewed in context because rebuttal statement was responsive to certain statements in defense counsel’s closing argument); State v. Mousel, 373 N.W.2d 359, 363 (Minn. App. 1985) (not improper in situation in which analogy directly connected to specific ‘‘ ‘distractions’ ’’ that defense raised); State v. Munroe, Docket No. E2008-00129-CCA-R3-CD, 2010 WL 2473309, *11 (Tenn. Crim. App. June 18, 2010) (construing remark contextually as argument that defense theory was not worthy of belief in light of evidence); Davis v. State, Docket No. 13-03-291-CR, 2004 WL 1584921, *2 (Tex. App. July 15, 2004) (concluding that analogy did not attack defense counsel personally but instead was used to explain evidence and respond to argument offered by defense). We note that the analysis in many of these jurisdictions appears to differ from ours in that they conflate the questions of whether a comment was improper and whether an improper comment deprived the defendant of a fair trial.
‘‘Q. What made you want to bring this to the attention of the state’s attorney’s office or to law enforcement in general?
‘‘A. Maybe it could help my case.
‘‘Q. So that’s what you hoped was going to happen?
‘‘A. Yes, sir.
‘‘Q. Again, I’m going to tell you, because if you want to change your story, go ahead and change it, there’s no promises to you. Okay? Period and end of story. Now, do you understand that?
‘‘A. Yes, sir.
‘‘Q. That’s one thing to hope that something’s going to happen, and it’s another thing to be told or expected. Did anybody give you any reason to expect something good is going to happen with all your charges?
‘‘A. No, sir.
‘‘Q. You understand that?
‘‘A. Yes.’’ (Emphasis added.)
The defendant also challenges the following statement in the prosecutor’s closing argument: ‘‘Ayala hopes he gets something for testifying? Sure he does. Sure he does. But the point is the defendant admits that he had the conversation with [Ayala], right, so that’s a check one right there. The second thing is the state’s not promising anything to . . . Ayala and he made that clear to you, and we make it clear to the jury.’’ (Emphasis added.)