STATE OF CONNECTICUT v. ZACKERY C. FRANKLIN
(AC 37161)
Gruendel, Lavine and Bishop, Js.
Argued September 25—officially released December 29, 2015
(Aрpeal from Superior Court, judicial district of New Haven, B. Fischer, J.)
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Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Kevin C. Doyle, former senior assistant state’s attorney, for the appellee (state).
LAVINE, J. The defendant, Zackery C. Franklin, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of
The defendant’s convictions arise from the murder of John Claude James (victim). On July 9, 2011, the victim was in the area of Howard Avenue and Putnam Street in New Haven. At approximately 6 p.m., firefighters responded to a call that someone had been shot; they found the victim on the sidewalk adjacent to the entrance to the parking lot behind 518–526 Howard Avenue. The victim had been shot three times and he died shortly after being taken to the hospital.
The jury reasonably could have found the following facts. The defendant had a motive to kill the victim so that he could obtain the victim’s gold chain, holding a joker medallion.1 The victim was wearing this chain on July 9, 2011. Two witnesses, Carol Boxley and Charles Caple, stated individually to police that on or about July 9, 2011, they overheard the defendant discussing gold jewelry, including the victim’s joker chain. Boxley told police that the defendant said ‘‘we’re going to get the joker chain ’cause gold is high now.’’ Caple told police that on the day the victim was shot, the defendant may have said that he was ‘‘gonna get’’ the victim.
Boxley and her family lived at 536 Howard Avenue.
At approximately 5:30 p.m. on July 9, 2011, Dorothy Council was on the back porch of 530 Howard Avenue when the victim stopped by to greet her. The victim left soon after and approximately fifteen minutes later, Council heard gunshots and ran inside 530 Howard Avenue. Looking through a window, Council saw the victim run across the parking lot toward Putnam Street, lose his balance, spin around, and fall down at the entrance of the parking lot to 518–526 Howard Avenue.
At this time, Lofton was in his backyard at 536 Howard Avenue, from where he could see across Putnam Street and into the parking lot of 518–526 Howard Avenue. Lofton saw the defendant shoot the victim in the chest. The defendant fired ‘‘three or more’’ or ‘‘maybe four or five shots’’ while the victim was facing him. Lofton saw the defendant, with a ‘‘silvery handgun’’ in his hand, and his friend, Earl Simpson, run from the back of Putnam Street toward the front of his house. He did not see anything in Simpson’s hands. Lofton was able to identify the defendant because he had known him for about a year. He had known the victim for longer, and was able to identify him as well.
Lofton went into his house using a rear entrance and saw the defendant in his kitchen. Both Simpson and the defendant offered Lofton marijuana and money, which Lofton did not accept. The defendant and Simpson ran out of the apartment toward Carlisle Street and got into a waiting black car.
At this time, Caple was in the area and heard the gunshots. He saw a black Acura, which he thought belonged to Isis Hargrove, drive by on Carlisle Street. Hargrove was Simpson’s sister and Caple was familiar with her. He knew that she had been involved with the defendant, and had seen her previously driving a black Acura in the area. Police later confirmed that she had a black Acura registered in her name. The police gathered evidence from the area, including several of the victim’s belongings, in the front part of the alcove between 518 and 522 Howard Avenue. The police found the victim’s unbroken joker chain on the ground. Although the victim had a cell phone with him that afternoon, the police recovered only the leather cell phone casе that the victim was known to wear on his belt. The police found six nine millimeter shell casings in the alcove, as well as blood-like substances near the alcove and on the sidewalk near the entrance to the parking lot where the victim was found.
On July 11, 2011, the police spoke with Hargrove about the shooting. On the night of July 12, 2011, the defendant and Hargrove, along with Simpson and his
On November 16, 2011, the defendant was arrested in Virginia. When the deputy making the arrest asked the defendant for identification, he gave a YMCA card with his photograph on it but with a name other than his own. At trial, the state asserted that the defendant’s use of false names and his flight from the state were indicative of his consciousness of guilt.
The defendant was brought back to Connecticut and charged with five offenses. The charges of murder, felony murder, and robbery or attempt to commit robbery in the first degree were tried to a jury, which returned a verdict of guilty on all three charges. The charges of carrying a pistol without a permit and criminal possession of a pistol or revolver were tried to the court, which found him guilty. The court merged the murder and felony murder convictions and imposed a sentence of sixty years imprisonment on the murder charge and twenty years on the robbery or attempted robbery charge to be served concurrently. The court imposed a sentence of five years on the conviction of carrying a pistol without a permit to be served concurrently, and five years on the conviction of criminal possession of a pistol or revolver to be served consecutively. The total effective sentence was sixty-five years. The defendant appeals from this judgment. Additional facts will be set forth as necessary.
I
SUFFICIENCY OF THE EVIDENCE
We first consider the defendant’s claim that the evidence was insufficient for the jury and court to return verdicts of guilty as to all five counts. The defendant’s argument is twofold. First, he argues that the jury could not rely on Lofton’s testimony because it was ‘‘physically impossible’’ for it to be true. Second, he argues that without Lofton’s testimony, the remaining circumstantial evidence was insufficient to prove that the defendant was guilty of any of the offenses charged. We disagree.
A
We begin with the defendant’s claim that it was physically impossible for Lofton’s testimony to be true. The defendant’s claim is not actually one of physical impossibility, but rather is a challenge to Lofton’s credibility and an argument that the jury could draw only one inference about where the shooting occurred based on the location of the expended shell casings. Prior to
The defendant’s physical impossibility claim turns entirely on where the shooting occurred. The following additional facts are relevant to this issue. Lofton was thе only eyewitness to the shooting and at the time he testified, he was twenty years old and testifying pursuant to a subpoena. The building at 518–526 Howard Avenue is an apartment building, and in between each unit on the ground floor are recessed alcoves. Each alcove is about twenty feet deep and ten feet wide, and is enclosed on three sides by the walls of the building. Police found the victim’s belongings and the expended nine millimeter shells in the alcove between apartment 518 and 522. Lofton said that he could not see into this alcove, but was able to see if people exited from it. The defendant asserts that the location of the expended shells conclusively proves that the shooting took place in this alcove, into which Lofton could not see.
The state called two witnesses with firearms experience, who testified as to where the six shells were found and their relation to where the shots were fired. One witness, Detective Omaida Nieves, testified that where the six shells and blood were found in the alcove did not prove that the shots were fired frоm that location. James Stephenson, a firearms expert from the state forensic science laboratory, testified that it was impossible to determine the ejection pattern of a firearm without knowing several variables, such as the type of firearm and the position of the shooter’s hand upon firing. He refused to speculate as to where the shots were fired from based upon the location of the six shell casings.
The defendant asserts that the ‘‘[the experts’ testimony] established that the only shots fired occurred in the alcove, not in the parking lot driveway area as claimed by Lofton. The shots were fired from a place that Lofton concededly could not see into.’’ A review of Nieves’ and Stephenson’s testimony reveals that the defendant bases his claim not on facts in the record, but on his own conclusory assertions about the inferences that should be drawn from where the shells were found. The defendant relies principally upon State v. Hammond, 221 Conn. 264, 276–78, 604 A.2d 793 (1992), in which the defendant prevailed on his claim of physical impossibility because the DNA and blоod type evidence conclusively established that the defendant could not have committed the crime. In the present case, however, it is entirely possible that the victim was running away from the alcove when he was shot and that the defendant was standing in a place where Lofton could see him. Thus, whether Lofton saw the defendant shoot the victim is a matter of credibility, not impossibility.
B
We next turn to the sufficiency of the evidence, including Lofton’s tеstimony, as to each of the defendant’s convictions. ‘‘The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.’’ (Internal quotation marks omitted.) State v. Mendez, 154 Conn. App. 271, 275–76, 105 A.3d 917 (2014).
First, the defendant’s challenge to the murder conviction fails because Lofton’s testimony and the circumstantial evidence were sufficient to establish the defendant’s guilt. ‘‘To establish a violation of
The defendant’s challenges to the sufficiency of the circumstantial evidence regarding his motive, consciousness of guilt, and possession of means to commit the crime also fail. The defendant argues that the evidence of Simpson’s and his fleeing the scene after the crime and leaving the state days later; his offer of money and marijuana to Lofton; Boxley and Caple’s testimony regarding his motive; and, evidence that he possessed a gun in the area of the shooting less than one month before it occurred, are ‘‘separately or together’’ insufficient to support the convictions of guilty beyond a reasonable doubt. While perhaps each ‘‘separately’’ might be insufficient, we disagree that ‘‘together’’ they do not support the jury’s verdicts, especially when considered with Lofton’s eyewitness testimony that the defendant shot the victim.
At trial, the state claimed that the defendant’s flight from Connecticut and use of false names was indicative of his consciousness of guilt. The jury reasonably could infer the defendant’s consciousness of guilt from these circumstances. See State v. Silva, 113 Conn. App. 488, 497–98, 966 A.2d 798 (2009) (jury can infer consciousness of guilt from defendant’s flight); State v. Martinez, 95 Conn. App. 162, 189, 896 A.2d 109 (2006) (jury can infer consciousness of guilt from use of alias), cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006). The jury also reasonably could have inferred from the circumstances that the defendant’s offer of marijuana and money to Lofton was to persuade him not to tell the police about the shooting.
In regard to the tеstimony about the defendant’s motive, he makes similar challenges to the credibility of Boxley and Caple that he made to Lofton. At trial, both initially testified that they did not remember mak-
The testimony that the defendant possessed a gun in the area weeks prior to the shooting was admitted to show that he possessed the means to commit the crime, and the jury reasonably could have considered it in determining the defendant’s guilt.3
Second, the defendant’s challenge to the conviction of carrying a pistol without a permit fails because the evidence was sufficient for the court to find the defendant guilty beyond a reasonable doubt.
Third, in regard to the conviction of criminal possession of a pistol or revolver,
Fourth, the defendant claims that there was insufficient evidence to find him guilty of robbery or armed robbery in the first degree and, accordingly, of felony murder. The defendant concedes that the victim’s possessions found in the alcove and the fact that his cell phone was missing, considered with the wounds that the victim suffered, allow for the inference that a robbery and murder occurred. Nonetheless, the defendant contends that the evidence was insufficient to convict him of robbery or attempted robbery because ‘‘none of this implicated the [him] . . . . No fingerprints, DNA or any evidence identifying [him] as the robber-shooter
The defendant’s argument fails because it overlooks that ‘‘[r]obbery may be proven by circumstantial evidence and the inferences drawn therefrom.’’ State v. Mullings, 202 Conn. 1, 11, 519 A.2d 58 (1987). At trial, the jury heard testimony from the victim’s mother that her son always wore his gold chain because it had sentimental value to him, as well as testimony from her and other witnesses that the victim had his cell phone the day of the shooting and that it was never found. The victim’s chain was found intact near the alcove, and the jury reasonably could have drawn the inference proposed by the state in closing argument that the victim would not have removed it because of its sentimental value unless he had been threatened to do so. The jury also could have reasonably inferred that the victim’s cell phone was taken, as it was never recovered. These inferences must be considered in light of the testimony that Lofton saw the defendant shoot the victim in the vicinity of where the victim’s belongings were recovered. In construing the evidence in the light most favorable to sustaining the verdict, we determine that the jury reasonably could have concluded that the cumulative force of the evidence established the defendant’s guilt beyond a reasonable doubt as to the count of robbery or attempted robbery, which served as the basis for the defendant’s felony murder conviction.
Mindful that in determining the sufficiency of the evidence we consider its cumulative effect, and construing the evidence in the light most favorable to sustaining the verdict, we determine that the jury reasonably could have concluded that the evidence established the defendant’s guilt beyond a reasonable doubt on the counts of murder, felony murder, and robbery, and that the court could have done the same on the counts of possession of a pistol without a permit, and criminal possession of a pistol or revolver.
II
VERDICTS AGAINST WEIGHT OF THE EVIDENCE/NEW TRIAL REMEDY
III
PRIOR MISCONDUCT EVIDENCE
The defendant next claims that the trial court abused its discretion by admitting evidence that he had previously displayed a gun to prove that he possessed the means to commit the crimes. He argues that the trial court erred for three reasons: (1) the witness’ description of the gun she saw was different from that of the murder weapon, (2) the purported misconduct was too remote in time, and (3) the prejudice outweighed the probative value. We disagree.
The following additional facts are relevant to this claim. The defendant filed a pretrial motion to compel the state to provide notice of its intention to use evidence of his prior misconduct. The state apprised the defendant of its intention to offer the testimony of a ‘‘female friend of the defendant’s girlfriend’’ describing a confrontation during which the defendant displayed a gun. The female friend was Caprie Ford, Nicky Boxley’s cousin. At trial, the state made an offer of proof outside the presence of the jury. Ford saw the defendant with Hargrove at the circus in Milford on June 14 or 15, 2011,5 and when she later saw him in the Putnam Street area she confronted him about his having been with a woman other than Nicky Boxley. The defendant walked away from Ford, but returned minutes later pointing at her what ‘‘looked like a little gun’’ and threatened to shoot her. Ford could see only a portion of the barrel because the defendant covered the rest of it with his sleeve, but stated that she was sure it was a real gun. When cross-examined, Ford testified that she could tell
The state offered this testimony pursuant to
The standard of review regarding uncharged misconduct evidence is well established. ‘‘Evidence of a defendant’s uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime. . . . Exceptions to this rule have been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . To determine whеther evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence. . . . Since the admission of uncharged misconduct evidence is a decision within the discretion of the trial court, we will draw every reasonable presumption in favor of the trial court’s ruling. . . . We will reverse a trial court’s decision only when it has abused its discretion or an injustice has occurred.’’ (Internal quotation marks omitted.) State v. Pena, 301 Conn. 669, 673–74, 22 A.3d 611 (2011).
‘‘Evidence indicating that an accused possessed an article with which the particular crime charged may have been accomplished is generally relevant to show that the accused had the means to commit the crime.’’
First, we are not persuaded by the defendant’s argument that the court could not conclude that what Ford saw in the defendant’s possession was a gun based on her description. Ford stated that she saw a ‘‘real gun’’ and a ‘‘metal barrel,’’ and the court also noted that defense counsel would have the opportunity to cross-examine her. The trial court had a sufficient factual basis to allow the admission of this testimony, and its decision was not an abuse of discretion.
The defendant argues that Ford’s description of the gun was not sufficiently similar to type used to shoot the victim. He highlights that in State v. Sivri, supra, 46 Conn. App. 585, the victim’s wounds were caused by a large caliber gun, and the evidence offered that the defendant had the means to commit the crime were large caliber weapons. He points out that in State v. Pena, supra, 301 Conn. 675, the connection between the murder weapon and the means to commit the crime evidence was more similar, as both weapons were described as ‘‘black pistols.’’ The defendant’s conclusion is that in the present case ‘‘there are no such similarities here where the barrel [that Ford described] was shown to be very different from the murder weapon.’’
Much of the defendant’s effort to distinguish the present case is premised on the defendant’s speculation that Ford only possibly could have seen a revolver, not a pistol. Stephenson determined that the gun used to kill the victim was a nine millimeter semiautomatic pistol. Comparing Ford’s description of the weapon she saw in the defendant’s possession with the testimony and evidence regarding the murder weapon, we conclude that the trial court did not abuse its discretion in determining that it was relevant to show that the defendant possessed the means to commit the crime. The jury reasonably could have inferred from Ford’s testimony that she saw a handgun, and at that time, the defendant possessed a weapon suitable for the commission of the offense charged.
The defendant’s challenge to the relevanсe of the confrontation between the defendant and Ford as too remote in time also fails. There is no bright line governing when a defendant’s possession of the means to commit the crime is too remote to be relevant. ‘‘In Sivri, we held that the evidence that the defendant was in
We next examine whether the prejudicial effect of the admission of Ford’s testimony outweighed its probative value. ‘‘[E]vidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. . . . Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.’’ (Internal quotation marks omitted.) State v. Rosario, supra, 99 Conn. App. 104.
We conclude that the court properly balanced the probative value of the evidence of the defendant’s prior possession of a firearm sufficient to commit the charged crimes against its prejudice to the defendant. Furthermore, the court gave a limiting instruction explaining to the jury the limited purpose for which it could use Ford’s testimony. See State v. Sivri, supra, 46 Conn. App. 583. The defendant asserts that unfair prejudice resulted from the jury being аllowed to hear that Ford saw the gun in the context of the defendant’s threatening to shoot her. While the court in Pena concluded that one reason admission of the defendant’s prior possession of a gun was not unduly prejudicial was because ‘‘[t]he testimony did not establish that the defendant previously had harmed or threatened any person, acted violently, or otherwise call into question the defendant’s character’’; State v. Pena, 311 Conn. 676; we note that the defendant in the present case did not seek to limit Ford’s testimony. He did not raise this issue in the state’s offer of proof, nor did he object when Ford testified to the entire incident in front of the jury. We thus conclude that the court did not abuse its discretion in admitting Ford’s testimony regarding the defendant’s possession of the means to commit the crime.6
PROSECUTORIAL IMPROPRIETY
The defendant next claims that he is entitled to a new trial due to prosecutorial impropriety. Specifically, the defendant claims that the prosecutor in closing arguments (1) misstated Council’s testimony regarding her observation of the victim falling down, (2) misstated the testimony of the medical exаminer, (3) misstated Boxley’s testimony regarding the defendant’s motive to take the victim’s gold chain, and (4) argued that the prior misconduct evidence showed motive when its only admissible purpose was to show possession of the means to commit the crime. The defendant did not object during closing argument, nor did he seek a curative instruction on any of the alleged improprieties.
The applicable law governing claims of prosecutorial impropriety is well established. ‘‘[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step process. The two steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived [the] 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 . . . .’’ (Internal quotation marks omitted.) State v. Andrews, 313 Conn. 266, 279, 96 A.3d 1199 (2014).
The defendant’s first claim of impropriety involves the prosecutor’s summation of Council’s testimony in his closing rebuttal argument. Council testified that, after she heard gunshots, she saw the victim run, spin around, and fall down where emergency medical personnel found him. The prosecutor stated ‘‘you heard about Miss Council saying what she saw and she claims she was good friends with [the victim] and saw him running and get shot and turn and landed on his back.’’ The defendant argues that the prosecutor engaged in impropriety because Council did not testify that she actually saw the victim get shot. We disagree.
‘‘We long have held that a prosecutor may not comment on evidence that is not a part of the record and may not comment unfairly on the evidence in the record.’’ State v. Fauci, 282 Conn. 23, 49, 917 A.2d 978 (2007). However, the prosecutor ‘‘may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.’’ (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 429, 902 A.2d 636 (2006). Furthermore, ‘‘[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
In the circumstances here, we find that the prosecutor was merely arguing the inferences that the jury reasonably could draw in considering the cumulative evidence. The defendant relies on State v. Fauci, supra, 282 Conn. 49, in which the prosecutor in rebuttаl argument definitively asserted the identity of a ‘‘mystery woman’’ that one of the defendant’s witnesses refused to identify, although there was no evidence in the record that supported the prosecutor’s assertion. Id., 49–50. In the present case, the prosecutor did not propose an unreasonable or unfair inference, nor did he make an assertion that was unsupported by the record. Council testified that she saw the victim fall down at the location where emergency medical personnel treated the victim for gunshot wounds. The jury reasonably could infer from the circumstances when Council testified that she saw the victim fall, she actually saw the moment when he got shot.
Second, the defendant’s claim that the prosecutor improperly misstated the medical examiner’s testimony also fails. The defendant’s theory of the case was that the shooting occurred in the alcove, out of Lofton’s view, and the victim then ran while injured and fell at the spot where the firefighters found him. Evangelista gave testimony that supported the theory that the defendant cоuld have moved after being shot, stating, ‘‘there’s no such injury such as like a spinal cord, or a brain injury where it would make a person unable to move or walk, so in my opinion, yes, he could ambulate or walk or run for some time.’’ However, Evangelista also stated ‘‘if he didn’t [move] it wouldn’t surprise me either.’’ In regards to the wounds, he could not determine the sequence of the three gunshots, but stated that the wound to the back and through the chest was the fatal one, as it perforated the apex of the victim’s heart.
In rebuttal argument, the prosecutor stated:
The defendant’s argument is essentially that because the medical expert testified that the victim could have moved after being shot, that the only logical inference that the prosecutor could propose and the jury could draw is that the victim did move. This overlooks Evangelista’s testimony that he would not have been surprised if the victim fell immediately after being shot. The proposed inferences were not unfair or unreasonable, and this portion of the prosecutor’s rebuttal argument was not improper.
Third, the defendant claims that the prosecutor engaged in impropriety by summarizing Boxley’s and Caple’s testimony regarding the defendant’s motive, arguing that their testimony could be used only for impeachment purposes. We disagree.
The following additional facts are relevant to this claim. Both Boxley and Caple initially testified that they did not remember giving statements to police regarding the defendant’s motive to steal the victim’s chain, and the prosecutor eventually presented them with portions of their statements. During the state’s direct examination of both witnesses, the jury heard their statements regarding the defendant’s motive.
The defendant’s argument is that both Boxley’s and Caple’s prior statements were not substantively admissible evidence and could be used only for impeachment purposes. However, the defendant did not seek to limit the grounds of admissibility, nor did he preserve these claims. It is well established that ‘‘[a]n appellate court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.’’ (Internal quotation marks omitted.) State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133 (2007), cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). ‘‘[A] defendant may not transform an unpreserved evidentiary claim into one of prosecutorial impropriety to obtain review of that claim.’’ Id. Because the defendant did not seek to limit the scope of their testimony, it was not improper for the prosecutor in closing argument to invite the jury to draw substantive inferences of the defendant’s motive from their statements. See State v. Rowe, 279 Conn. 139, 152, 900 A.2d 1276 (2006) (‘‘[a]rguing on the basis of evidence explicitly admitted
The defendant’s final claim is that the prosecutor engaged in impropriety by arguing that the evidence of the defendant’s possession of the means to commit the crime also demonstrated the defendant’s character and propensity to commit the crimes. The state concedes that the prosecutor’s statements on this subject in his initial and rebuttal closing arguments were improper.7 However, we conclude that these comments did not deprive the defendant of a fair trial.
‘‘Our Supreme Court has indicated that the 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, 204 Conn. 523, 540, 529 A.2d 653 (1987), with due consideration of whether that [impropriety] was objected to at trial. . . . 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.’’ (Internal quotation marks omitted.) State v. James E., 154 Conn. App. 795, 816–17, 112 A.3d 791 (2015).
The defendant did not invite the impropriety, as the prosecutor made the improper remarks in both his initial and rebuttal closing argument. See State v. Alexander, 254 Conn. 290, 308, 755 A.2d 868 (2000). The improprieties were not frequent, as the prosecutor made the improper remarks about Ford’s testimony in relatively brief instances, once each in his initial and rebuttal closing arguments. The remarks also were not severe, as ‘‘we consider it highly significant that defense counsel failed to object to any of the improper remarks [or] request curative instructions . . . . Defense counsel, therefore, presumably [did] not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial.’’ (Internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 479, 832 A.2d 626 (2003).
The central issue in this case was the identity of the shooter. The defendant asserts that the inference could have affected the jury’s determination that the defendant was the shooter. Even if that were true, the jury had the far more probative testimony of Lofton to consider in determining whether the defendant was the shooter, as well as testimony relating to the defendant’s motive and circumstantial evidence of the defendant’s consciousness of guilt. We are not persuaded that the jury would have reached a different conclusion about the shooter’s identity had it not heard the brief improper remarks.
Although the trial court did not give specific curative
Finally, the state’s case against the defendant was relatively strong. ‘‘The state’s evidence does not need to be overwhelming to support a conclusion that prosecutorial impropriety did not deprive the defendant of a fair trial.’’ State v. Felix, 111 Conn. App. 801, 816, 961 A.2d 458 (2008). Putting aside any potential influence of the improper remarks, the jury had Lofton’s eyewitness testimony, as well as circumstantial evidence of the defendant’s consciousness of guilt and the testimony of two witnesses regarding the defendant’s motive. On the basis of our analysis of the Williams factors, we conclude that the improper remarks did not deprive the defendant of a fair trial.
V
VACATUR OF FELONY MURDER CONVICTION
The defendant claims that the trial court erred in merging his convictions for murder and felony murder. The state concedes that State v. Miranda, 317 Conn. 741, 751, 120 A.3d 490 (2015), which was pending in our Supreme Court when this appeal was filed, controls this issue. Pursuant to Miranda, we reverse the judgment in part and remand the case to the trial court with the direction to vacate the defendant’s felony murder conviction.
VI
CORRECTION OF THE JUDGMENT FILE
The defendant’s finаl claim is that the judgment file must be corrected because the trial court deprived him of his right to a unanimous verdict in instructing jurors that on the charge of robbery or attempted robbery the jury did not have to be unanimous as to which theory it found the defendant guilty, as long as it was unanimous as to one of them. We disagree.
State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), is instructive on this claim. In Jones, the indictment
Furthermore, the defendant has not demonstrated what relief he would receive through a correction of the judgment file. The defendant was charged with a single count of ‘‘robbery or attempted robbery in the first degree’’ in violation of
The judgment is reversed in part and the case is remanded with direction to vacate the felony murder conviction; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.