State v. CiulloState v. Ciullo
Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and James Bernardi, supervisory assistant state’s attorney, for the appellee (state).
EVELEIGH, J. The defendant, Pasquale E. Ciullo, appeals from the judgment of the Appellate Court affirming the trial court’s judgment of conviction, rendered after a jury trial, of two counts of unlawful restraint in the first degree in violation of
The opinion of the Appellate Court appropriately sets forth the following facts that the jury reasonably could have found. ‘‘The defendant owned and rented out a house located at 172 Byram Shore Road in Greenwich. In May, 2007, the defendant and his neighbor, Rose Pinchuk, were involved in a dispute over a stone wall and pillars that border their two properties. This dispute resulted in the use of attorneys and a survey being conducted to determine the exact location of the defendant’s property line.
‘‘On July 4, 2007, Pinchuk drove to Port Chester, New York, and hired two day laborers, Victor Illescas and Job Diaz,2 and drove them to her house. Pinchuk directed Diaz and Illescas to install a fence, which followed her home’s property line and continued into the driveway of the defendant’s house. Pinchuk supplied Illescas and Diaz with the materials and tools necessary for the fence extension, including a pickax, shovel, rake and iron bar. Pinchuk and the defendant’s neighbor, Martin Hyman, observed the laborers digging holes in the driveway, and Hyman called the defendant’s place of residence for the purpose of reporting these happenings. When the defendant’s son, Angelo Ciullo, answered the telephone at the defendant’s home, Hyman informed him of the fence construction, and urged [Angelo Ciullo] to call the police due to the property damage he believed was being caused by the work of Illescas and Diaz.
‘‘After receiving this telephone call, the defendant and [Angelo Ciullo] drove a pickup truck to the defendant’s house on Byram Shore Road and brought the truck to a sudden stop where Illescas and Diaz were working in close proximity to each other. The defendant and Angelo Ciullo left the truck, drew Walther PPK semiautomatic pistols from their holsters and began yelling at the laborers. During these initial moments of the confrontation, the defendant pulled back his pistol’s slide . . . and he and Angelo Ciullo pointed their pis-
‘‘When the police arrived at the scene, they encountered the defendant and Angelo Ciullo standing near Illescas and Diaz. The defendant told the police that he had instructed the laborers to stop working on his property, that he and Pinchuk had previously disagreed over the boundary separating their property and that Pinchuk had been present when they arrived at the scene but had run away. The police located Pinchuk lying on the steps of the backyard patio of the house where she had run while being pursued by the defendant. On examination, the police discovered that she had a lacerated left palm and bruising on her legs. A subsequent police search of the defendant’s pickup truck revealed that a wooden billy club and baseball bats were stored in the cab of the truck. The police then arrested the defendant and Angelo Ciullo.’’3 Id., 396–98.
The record reveals the following additional facts. After the defendant and Angelo Ciullo exited the car, the defendant repeatedly yelled profanities at the laborers, turned off the safety mechanism on his gun, and displayed the gun to the laborers constantly, lifting the gun out of its holster enough to place his hand around the trigger guard.4 The defendant surrendered his gun to a responding police officer with the safety off, a hollow point bullet in the chamber, and a full magazine loaded into the gun.
The opinion of the Appellate Court appropriately sets forth the procedural history. ‘‘The state charged the defendant by way of an amended information with three counts of unlawful restraint in violation of
On appeal to the Appellate Court, the defendant claimed, inter alia, that the prosecutor engaged in improprieties that deprived him of a fair trial.5 Id., 395–96. The Appellate Court found that the prosecutor’s statements were not improper and did not deprive the defendant of his right to a fair trial, though it did reverse the defendant’s conviction for unlawful restraint of Pinchuk, citing to insufficient evidence to support the verdict. Id., 405, 415. This appeal followed.6
On appeal to this court, the defendant claims that the prosecutor improperly: (1) shifted the burden of proof to the defense; (2) vouched for the credibility of the state’s witnesses; (3) denigrated the defense and impugned the credibility of the defendant’s testimony; and (4) appealed to the jurors’ emotions. The defendant claims that the sum of the prosecutor’s alleged improprieties deprived him of his due process right to a fair trial. The state claims that the prosecutor’s statements were not improper and, even assuming they were, such improprieties did not violate the defendant’s due process right to a fair trial. We agree with the state and affirm the judgment of the Appellate Court, albeit for different reasons.
Before we address the merits of the defendant’s claims, we set forth the standard of review and the law governing claims of prosecutorial impropriety. ‘‘[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [an impropriety is an impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial . . . .’’ (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 428, 902 A.2d 636 (2006).
‘‘[I]t is unnecessary for a reviewing court to apply the four-prong Golding7 test. . . . The reason for this is that the defendant in a claim of prosecutorial [impropriety] must establish that the prosecutorial [impropriety] was so serious as to amount to a denial of due process . . . . In evaluating whether the [impropriety] rose to this level, we consider the factors enumerated by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).8 . . . The consideration of the fairness of the entire trial through the Williams factors duplicates, and, thus makes superfluous, a separate
The state asserts that the defendant raises previously unreviewed examples of prosecutorial improprieties for the first time on appeal to this court. Noting that the Appellate Court ruled on the defendant’s claims of prosecutorial impropriety only with respect to vouching for the credibility of the state’s witnesses, the state asserts that we should disregard those alleged improprieties that do not fall within the category of ‘‘vouching.’’ We disagree.
It is well settled that ‘‘a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of [Golding]. . . .’’ (Internal quotation marks omitted.) State v. Luster, supra, 279 Conn. 426. ‘‘Furthermore, the application of the Golding test to unchallenged incidents of [impropriety] tends to encourage analysis of each incident in isolation from one another. Because the inquiry must involve the entire trial, all incidents of [impropriety] must be viewed in relation to one another and within the context of the entire trial. The object of inquiry before a reviewing court in [due process] claims involving prosecutorial [impropriety], therefore, is . . . only the fairness of the entire trial, and not the specific incidents of [impropriety] themselves. Application of the Williams factors provides for such an analysis . . . .
‘‘This does not mean, however, that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor’s improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial. . . . [Thus], the fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.’’ (Citation omitted; internal quotation marks omitted.) Id., 427–28.9
In the present case, the defendant claims that the prosecutorial improprieties occurred during the state’s closing argument and rebuttal. ‘‘As we previously have recognized, prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . When making closing arguments to the jury, [however, counsel] must be allowed a generous latitude in argument, as the limits of legitimate argu-
‘‘Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every 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. . . . By reason of his office, he usually exercises great influence upon jurors. . . . While the privilege 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.) Id., 428–29.
I
Having set forth the applicable law, we now turn to the question of whether the prosecutor’s remarks in the present case constituted prosecutorial impropriety. The defendant claims that the prosecutor improperly: (1) shifted the burden of proof to the defense; (2) vouched for the credibility of the state’s witnesses; (3) denigrated the defense and impugned the credibility of the defendant’s testimony; and (4) appealed to the jurors’ emotions. We will address each claim of prosecutorial impropriety in turn, setting forth additional facts as needed.
A
Shifting the Burden of Proof to the Defense
The defendant first claims that the prosecutor, in his closing argument, shifted the burden of proof to the defense in violation of In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), when he said that the ‘‘testimony [of the defendant and Angelo Ciullo] does nothing at all to create a doubt in this case.’’10 The state responds that this comment was isolated and that, thereafter, the prosecutor correctly expressed the burden of proof multiple times. We agree with the state.
Viewing the comment in the context of the prosecutor’s closing argument, we conclude that the prosecutor’s comment was not improper. The prosecutor began his closing argument by instructing the jury that ‘‘it is
The challenged comment was isolated, likely unintentional, and without any prejudicial impact because the comment related to testimony discussing the alleged assault and unlawful restraint of Pinchuk, of which the defendant was ultimately acquitted. In the context in which it was made during closing arguments, we conclude that this comment was not improper.
B
Vouching for the Credibility of the State’s Witnesses
The defendant claims that the prosecutor impermissibly vouched for the credibility of the state’s witnesses on eight different occasions.11 Specifically, the defendant points to the prosecutor’s use of words such as ‘‘credible,’’ ‘‘honest,’’ and ‘‘truthful.’’ The defendant asserts that, because the credibility of the witnesses was a central issue in the case, the impact of the prosecutor’s alleged vouching ‘‘devastated the defense.’’ The state responds that the prosecutor’s statements were not improper and, instead, were permissible because ‘‘the state may argue that its witnesses testified credibly, if such an argument is based on reasonable inferences drawn from the evidence.’’ State v. Warholic, 278 Conn. 354, 365, 897 A.2d 569 (2006). We agree with the state.
‘‘The parameters of the term zealous advocacy are . . . well settled.’’ (Internal quotation marks omitted.) Id., 363. ‘‘[A] prosecutor may not express his [or her] 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. . . . Put another way, the prosecutor’s opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state’s] judgment rather than its own view of the evidence. . . . Moreover, because the jury is aware that the prosecutor has prepared 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. . . . However, [i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to
A prosecutor’s mere use of the words ‘‘honest,’’ ‘‘credible,’’ or ‘‘truthful’’ does not, per se, establish prosecutorial impropriety. In State v. Luster, supra, 279 Conn. 438 n.7, this court found no prosecutorial impropriety when the prosecutor pointed to a witness’ testimony and stated that ‘‘ ‘[the witness] was, I think, if you will look at his testimony, honest and open with us.’ ’’ This court reasoned that the prosecutor had not made bald assertions that the state’s witnesses had been honest such that his remarks might constitute the ‘‘unsworn and unchecked testimony’’ suggestive of a prosecutor’s ‘‘special position’’ and his ‘‘access to matters not in evidence,’’ which a jury may infer to have ‘‘precipitated the [prosecutor’s] personal opinions’’ of the witness’ veracity. (Internal quotation marks omitted.) Id., 435. Instead, the prosecutor in that case had referred to the facts adduced at trial, the witness’ demeanor on the witness stand, and testimony indicating that its witness, unlike the other witnesses, had no personal connection to either the victim or the defendant. Id., 439.
With these principles in mind, we now turn to the defendant’s specific claims of vouching in the present case. We agree with the Appellate Court that the four claimed instances of vouching in the prosecutor’s closing argument do not purport to convey the prosecutor’s personal opinion of the credibility of the witnesses; instead, the prosecutor’s statements, when placed in the context in which they were made, are reasonable inferences the jury could have drawn from the evidence adduced at trial.12 See State v. Ciullo, supra, 140 Conn. App. 415. The prosecutor pointed to facts likely to give rise to the reasonable inference that the laborer’s testimony was credible, such as the laborers’ lack of motive to lie, lack of ability to speak English, and holes in the testimony that if the laborers had been lying they would have plugged. The prosecutor did not make a bald assertion of witness credibility or state his personal opinion as to the veracity of the witnesses; instead, he ‘‘posited a reasonable inference that the jury itself could have drawn without access to the [prosecutor’s] personal knowledge of the case.’’ State v. Stevenson, supra, 269 Conn. 584. He did not ‘‘suggest the existence of secret knowledge’’ but instead based his opinion on ‘‘the ascertainable motives of the witnesses.’’ Id., 584–85. He meticulously laid out the facts from which to draw the reasonable inferences that the witnesses were credible.
The defendant also asks us to overrule the ‘‘dangerous exception to the ban on vouching,’’ claiming that prosecutors should not be able to vouch for the credibility of their witnesses and insulate their statements from claims of impropriety under Williams by tacking on references to corroborative facts in the record. Instead, the defendant proposes that prosecutors never be permitted to urge that their witnesses told the truth, especially in cases in which the vouching is aimed at ‘‘sharply contested facts’’ flowing from the witnesses whose credibility is at issue. In response, the state urges us to follow this court’s existing jurisprudence allowing a prosecutor to comment on witness veracity only if the statements are reasonably inferred from the evidence and/or common sense. We decline the defendant’s invitation to overrule this court’s jurisprudence.
‘‘It is well established that a prosecutor may argue about the credibility of witnesses, as long as her assertions are based on evidence presented at trial and reasonable inferences that jurors might draw therefrom. . . . Moreover, [i]n deciding cases . . . [j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel to appeal to [the jurors’] common sense in closing remarks.’’ (Citation omitted; internal quotation marks omitted.) State v. Medrano, 308 Conn. 604, 617–18, 65 A.3d 503 (2013). Our jurisprudence permits these statements from the prosecution, if properly presented, because ‘‘[w]e must
We decline to adopt the defendant’s suggestion of a bright line rule prohibiting a prosecutor’s statements on credibility in ‘‘pure credibility’’ cases, because these statements may be reasonably inferred from evidence adduced at trial, because juries are credited with being able to differentiate between proper and improper arguments, and because of the subjectivity involved in characterizing a case as a ‘‘pure credibility’’ case versus a case with ‘‘sharply contested facts.’’14 Cf. State v. Singh, 259 Conn. 693, 710–11, 793 A.2d 226 (2002) (declining to adopt bright line rule that would allow prosecutors to ask questions and argue in closing about whether witness’ testimony ‘‘is the opposite of or contradicts the testimony of other witnesses, thereby presenting a basic issue of credibility’’ in contrast to prohibition of prosecutors from asking questions and arguing in closing about whether witness ‘‘lied’’ because ‘‘[i]t would be unwise, in our view, to make the application of this exception predicated on such a difficult distinction, which is relegated properly to the jury’’ [internal quotation marks omitted]). Though we caution against all forms of vouching; see State v. Alexander, 254 Conn. 290, 305, 755 A.2d 868 (2000) (noting that vouching ‘‘is especially significant in . . . case[s] where the credibility of the victim and the defendant comprised the principal issue of the case’’); we affirm this court’s jurisprudence allowing a prosecutor to ‘‘invit[e] the jurors to draw reasonable inferences from the evidence presented to them’’ so long as the prosecutor’s ‘‘assertions are based on evidence presented at trial and reasonable inferences that jurors might draw therefrom.’’ State v. Medrano, supra, 308 Conn. 617.
C
Denigrating the Defense and Impugning the Credibility of the Defendant’s Testimony
The defendant claims that the prosecutor improperly denigrated the defense, impugned the defendant’s testimony as ‘‘incredible,’’ and implied that the only way the jurors could find the defendant not guilty was if they found that the prosecution’s witnesses had lied. We address each of these arguments in turn and conclude that, although some, but not all, of the comments were questionable, even if we were to assume, without deciding, that the prosecutor’s remarks were improper, the comments do not compel a reversal of the judgment.
The defendant first claims that the prosecutor improperly disparaged the defense by implying that
We disagree with the disparaging import the defendant attributes to this statement and, even assuming the statement could have disparaged the defense, ‘‘a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’’ (Internal quotation marks omitted.) State v. Warholic, supra, 278 Conn. 368. This brief statement comprised a few words among hours of closing arguments after a thirteen day trial. The language itself was neither colorful nor malicious and, in context, we do not agree that the statement denigrated the defense. The isolated comment was not improper.
The defendant next claims that the prosecutor improperly impugned the defendant’s testimony and implied that the only way the jurors could find the defendant not guilty was if they found the prosecution’s witnesses lied.16 The state responds, first, that none of the comments were improper in context because the prosecutor pointed to facts in evidence and asked the jury to apply common sense to the evidence in order to delineate the motives of a police officer and the laborers to testify truthfully. Next, the state asserts that the statements in the closing argument were not improper because they were meant to ‘‘preempt’’ defense counsel’s likely argument that the state’s witnesses had coordinated their testimony to falsely accuse the defendant. Finally, the state asserts that, even if these statements violated State v. Singh, supra, 259 Conn. 693, this court should overrule Singh to the extent that, in a ‘‘pure credibility’’ case, State v. Fauci, supra, 282 Conn. 48, permits the prosecutor to infer that one of the two sides is lying.
‘‘[C]ourts have long admonished prosecutors to avoid statements to the effect that if the defendant is innocent, the jury must conclude that witnesses have lied.17 . . . The reason for this restriction is that [t]his form of argument . . . involves a distortion of the government’s burden of proof.’’ (Citations omitted; footnote altered; internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 709. Statements of this type ‘‘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. United States v. Fernandez, 145 F.3d 59, 64 (1st Cir. 1998) (finding it unfair to force witness to choose between
In Singh, this court warned 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.’’ State v. Singh, supra, 259 Conn. 712. In the present case, the state concedes that the prosecutor’s statements in his closing argument ‘‘directly [link] the defendant’s innocence to believing that the state’s witnesses were lying and, taken in isolation, [are] generally barred under Singh.’’ Nevertheless, the state asserts that it was entitled to make the statements in its closing arguments because the statements would anticipatorily ‘‘preempt’’ defense counsel’s argument that the state’s witnesses conspired against the defendant. The state also asserts that the prosecutor’s statements ‘‘[furnished] the jurors with a permissible way to side with the state’s witnesses and disbelieve the defendant in their pure credibility contest . . . .’’ Although the prosecutor’s use of the word ‘‘lying’’ appears to fall within the language prohibited by Singh, and should be discouraged, for the purposes of our analysis we assume, without deciding, that the comments violated Singh. See State v. Singh, supra, 709–12.18
Next, the state asserts that we should overrule Singh’s prohibitions in ‘‘pure credibility’’ cases, such as the present case, because the risks of misleading the jury and distorting the burden of proof are not implicated when the jury’s sole task is to determine which witnesses are credible because the only way to find that the defendant had brandished his gun would be to decide that some witnesses had lied.
In support of its argument, the state cites Fauci, in which this court stated that ‘‘in a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and thus to argue, that one of the two sides is lying. . . . For instance, as [this court] previously noted in [State v. Stevenson, supra, 269 Conn. 584–85], it was not improper for a prosecutor to suggest that the police and the victims had no reason to lie but that the defendant and his friends and family did have a reason to do so. . . . We reasoned that this was proper because it was based on the ascertainable
This court has recently found Singh violations in closing arguments where the ‘‘prosecutor made a direct connection between the defendant’s acquittal and the credibility of every other witness in the case.’’ State v. Albino, 312 Conn. 763, 788, 97 A.3d 478 (2014).19 We stated that, ‘‘under Singh, it is not per se improper to argue that the jury must conclude that one side of conflicting accounts must be wrong. Although we conclude that it would be unwise in the present case to attempt to articulate a bright line rule as to when such argument would be improper, we urge prosecutors to avoid statements directly connecting these assessments to the defendant’s conviction or acquittal.’’ Id., 788 n.10.
We thus decline the state’s invitation to overrule Singh. For the reasons discussed previously in this opinion, we also decline the state’s suggestion to adopt a bright line rule as to an application of Singh that would require a court to differentiate between a ‘‘pure credibility’’ case and a case with ‘‘sharply contested facts.’’ See footnote 14 of this opinion. Therefore, although we express our displeasure with some of the prosecutor’s comments, we assume, without deciding, that his comments were improper and violated Singh. In view of the analysis set forth in part II of this opinion, however, the comments do not compel a reversal of the conviction.
D
Appealing to the Jurors’ Emotions
The defendant lastly claims that the state improperly appealed to the jurors’ emotions by referring to the laborers and Pinchuk as ‘‘victims’’ and making other inflammatory statements during the state’s rebuttal. We address each argument in turn and conclude that, although some, but not all, of the comments were questionable, even if we were to assume, without deciding, that the remarks were improper, the result would remain unaltered.
The defendant first claims that the prosecutor improperly referred to the laborers as ‘‘victims’’ three times during his closing argument and once during rebuttal, and improperly referred to Pinchuk as a ‘‘victim’’ three times during direct examination of the police
In State v. Cortes, 276 Conn. 241, 885 A.2d 153 (2005), this court held that a trial court’s repeated reference to the complainant as the ‘‘victim’’ during its jury charge was inappropriate in a case where the commission of the crime was at issue. By contrast, in Warholic, this court held that a prosecutor’s reference to the complainant as the ‘‘victim’’ was not necessarily inappropriate because ‘‘the jury was likely to understand that the state’s identification of the complainant as the victim reflected the state’s contention that, based on the state’s evidence, the complainant was the victim of the alleged crimes.’’ State v. Warholic, supra, 278 Conn. 370. This court ‘‘caution[ed] the state, however, against making excessive use of the term ‘victim’ to describe a complainant when the commission of a crime is at issue because prevalent use of the term may cause the jury to draw an improper inference that the defendant committed a crime against the complainant.’’ Id., 370 n.7. In Warholic, the state made only two references to the complainant as the victim, compared with thirty-four references to the complainant by name in the rest of its closing arguments. Id.
In the present case, the prosecutor made only four references to the laborers as ‘‘victims’’ in its closing argument and rebuttal, and three references to Pinchuk as a ‘‘victim’’ during examination of the police officers. We conclude that, as in Warholic, this was not sufficiently excessive to be improper,20 though we reiterate our caution to the state to refrain from making excessive use of the term ‘‘victim’’ to describe a complainant when the commission of a crime is at issue.
The defendant next claims that the prosecutor improperly appealed to the jurors’ emotions in his rebuttal, thus soliciting sympathy for the laborers.21 The state responds that these statements merely provided the jurors with ‘‘a necessary and vivid perspective’’ of the ‘‘depth of the laborers’ motivation to testify truthfully,’’ which spoke to the laborers’ credibility. We determine, that even if we were to assume, without deciding, that the prosecutor’s remarks were improper, the result would remain unaltered.
‘‘[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [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.) State v. Medrano, supra, 308 Conn. 615. ‘‘When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal
In the present case, the prosecutor’s statements that the laborers ‘‘would have walked over the Peruvian Andes Mountains to get here,’’ that ‘‘they would have walked a thousand miles to testify in this case,’’ and that the laborers ‘‘would have walked [fifty] miles to come in here and testify against the two men that humiliated them, made them beg, put guns to them, pointing guns to them, and treated them as if they were dirt that got dug up out of that driveway that day’’ were questionable. The prosecutor’s personal opinion about how far the laborers would have walked to testify in this case is wholly irrelevant and has ‘‘no bearing on witness credibility or any factual issue in the case’’ other than ‘‘to encourage the jury to sympathize with [the laborers] and to decide the case on the basis of passion and emotion.’’ State v. Warholic, supra, 278 Conn. 377. We therefore, assume, without deciding, that these remarks were improper.
We conclude that the prosecutor’s description of the defendant in the statement accusing the defendant of ‘‘treat[ing] [the laborers] as if they were dirt that got dug up out of that driveway that day’’ was fleeting and, therefore, not so repetitious as to become improper. We assume, without deciding, that the prosecutor’s statements that the laborers had been so humiliated that they would have walked far lengths to testify truthfully at trial was an injection of extraneous matters, an appeal to the emotions of the jurors, and an attempt to encourage the jury to identify with the victims, but that any alleged impropriety does not alter the judgment in this case.
II
We now turn to the question of whether the prosecutor’s alleged improprieties deprived the defendant of his due process right to a fair trial. ‘‘[O]ur determination of whether any improper conduct by the [prosecutor] violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, supra, 204 Conn. 540, with due consideration of whether that [impropriety] 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. . . .
After considering the prosecutor’s various alleged improprieties—impugning the credibility of the defendant, urging that to acquit the defendant the jury had to find that the state’s witnesses had lied, and appealing to the emotions of the jurors—in the context of the entire trial, we hold that the defendant has not shown a denial of due process.
We begin by determining whether the alleged improprieties were invited by the defense during the trial. The defendant notes that many of the allegedly improper statements occurred in the state’s closing arguments, before defense counsel had had a chance to invite the improprieties because defense counsel had not yet made his own closing argument. The defendant also notes that defense counsel’s closing argument did not invite any improprieties in the state’s rebuttal. The state does not point to any statements in the record that would have invited the alleged prosecutorial improprieties.22 We note that much of the prosecutor’s statements in this case were unprovoked and, in fact, worsened after defense counsel’s objections. Accordingly, we conclude that the alleged improprieties were not invited.
We next consider whether the alleged improprieties were severe. In determining whether prosecutorial impropriety is severe, we consider whether defense counsel objected to the improper remarks, requested curative instructions, or moved for a mistrial. See State v. Fauci, supra, 282 Conn. 51. We also consider whether the ‘‘impropriety was blatantly egregious or inexcusable.’’ Id. The defendant objected to some of the alleged improprieties in the present case, after which the prosecutor continued to make similar statements, culminating in the trial judge’s directive to ‘‘leave it out.’’ The statements of the prosecutor relating to the laborers’ socioeconomic status and national origin and to the lengths the laborers would have walked to testify to receive justice for their humiliation were inexcusable in any context; nevertheless, defense counsel did not move to strike those comments and did not request targeted curative instructions from the trial judge during closing arguments. Instead, defense counsel ‘‘ask[ed] the court just to give that instruction [in the jury charge] that I think you are going to give them anyway, that the arguments of counsel are not evidence in that regard.’’23 Despite the possible severity of such comments, the statements made by the prosecutor in
We next consider whether the alleged improprieties were central to the critical issues in the case. Although we agree that the case mostly centered on a determination of credibility, not all of the allegedly improper statements implicated this issue. Viewed in the context of the rest of the trial, however, the impact of these alleged improprieties was minimal.24 Even if all of the statements had affected a determination of credibility, the defendant was acquitted of the some of the charges against him, clearly demonstrating the jurors’ ability to filter out the allegedly improper statements and make independent assessments of credibility.
The jurors’ acquittal of the defendant on some charges also speaks to the strength and efficacy of the curative measures adopted.25 The defendant, citing State v. Ceballos, 266 Conn. 364, 413, 832 A.2d 14 (2003), asserts that the curative instructions to the jury were insufficient because they were neither contemporaneous nor specifically directed at the alleged prosecutorial impropriety involved. We disagree that the curative instructions in this case were insufficient and further note that, as in Ceballos, defense counsel ‘‘did not object to the content of this curative instruction. . . . [W]e note that the defendant, by failing to bring [the improprieties] to the attention of the trial court, bears much of the responsibility for the fact that these claimed improprieties [may have gone] uncured.’’ (Citation omitted.) Id., 413–14.
Lastly, the state’s case against the defendant for unlawful restraint of the laborers was strong. The defendant admitted facts26 that a jury, even discrediting the laborers and believing the defendant, could reasonably have concluded constituted unlawful restraint. In the context of the trial—in light of the defendant’s admissions, the testimony of the laborers and police officers, the 911 call, and the physical evidence that the gun was fully loaded with the safety off—the state’s case was strong, independent of any alleged prosecutorial improprieties.
Considering the alleged prosecutorial improprieties within the context of the entire trial, we hold that the defendant was not denied a fair trial under the Williams standard and, therefore, agree with the Appellate Court that reversal of the defendant’s conviction of two counts of unlawful restraint in the first degree is unwarranted.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.