STATE OF CONNECTICUT v. JOHN A. MASSARO
(AC 43323)
Moll, Alexander and DiPentima, Js.
July 13, 2021
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Syllabus
Convicted of the crime of the sale of a narcotic substance, the defendant appealed to this court. The defendant sold crack cocaine to M, who testified about the drug sale at trial. Prior to trial, M was interviewed and gave a statement to a defense investigator, P, who provided a memorandum containing M‘s statement to defense counsel. In her statement, M indicated that she had possessed narcotics prior to meeting with the defendant and that she provided narcotics to the defendant. The parties agreed prior to trial that the state would not present expert testimony from its witnesses regarding narcotics trafficking. During trial, it was discovered that defense counsel failed to timely disclose P‘s memorandum. The trial court concluded that P‘s memorandum was not protected attorney work product and should have been disclosed to the state pursuant to the relevant rule of practice (§ 40-15). The court imposed a sanction on the defense limiting P‘s testimony and ruled that P‘s memorandum would not come into evidence. The trial court ordered defense counsel to provide a redacted copy of the memorandum to the prosecutor and to make P available for subsequent questioning. Defense counsel called P as a witness, who testified that M provided narcotics to the defendant on the day of his arrest. Immediately following this testimony, the court provided the jury with a limiting instruction that the testimony was to be used only for the purpose of impeaching M‘s prior inconsistent statement that she had purchased narcotics from the defendant. During his cross-examination of P, a former law enforcement officer, the prosecutor asked a series of questions regarding the sale and use of drugs. After P had answered these questions, defense counsel objected on the ground that the parties’ agreement did not permit opinion testimony regarding the narcotics trade and that P had not been offered as an expert. The court denied defense counsel‘s motion for a mistrial. The trial court also denied the defendant‘s motion for a new trial on the basis of prosecutorial impropriety. Held:
1. The defendant could not prevail on his claim that the trial court abused its discretion in determining that defense counsel had violated discovery rules and by imposing a sanction limiting P‘s testimony as a result of that violation as any error relating to the court‘s discovery ruling and sanction was harmless: although the trial court improperly determined that P‘s memorandum constituted M‘s statement pursuant to
2. The defendant could not prevail on his claim that the trial court abused its discretion in permitting the prosecutor to go beyond the scope of direct examination on his cross-examination of P and to convert him into an expert witness regarding the narcotics trade after the parties had agreed not to present expert testimony on that topic: even assuming, arguendo, that the court‘s evidentiary rulings regarding the state‘s cross-examination of P constituted an abuse of discretion, any such error was harmless as this court could not conclude that the jury‘s verdict was substantially swayed by the state‘s cross-examination of P, as testimony from several witnesses supported the state‘s case that the defendant sold the narcotics.
3. The defendant failed to establish that his due process right to a fair trial was violated as a result of prosecutorial impropriety:
a. The defendant failed to establish that any impropriety occurred during the prosecutor‘s cross-examination of P when P was asked if he knew the state had been unaware of the statement M purportedly had made to P regarding the possession of narcotics; contrary to the defendant‘s claim, P did not impugn the integrity of defense counsel as the thrust of the prosecutor‘s inquiry was on the actions of P, and not defense counsel, specifically, the prosecutor highlighted for the jury the contrast of P‘s statements on his company‘s website and P‘s actions, and this line of inquiry served to challenge P‘s credibility, rather than to demean the integrity or role of defense counsel; moreover, the prosecutor did not mention the relevant rules of practice regarding the timing of discovery materials to the jury.
b. The prosecutor‘s challenged comment during closing argument that the defendant “behaved himself well in court” was not improper; the remark was made in the context of the prosecutor‘s proper comments that the jurors were required to put aside any sympathy for the defendant, due to his age, and to decide the case on the basis of the evidence presented, and the challenged comment focused solely on the defendant‘s good in-court behavior and did not suggest, in any manner, any sort of illicit or untoward out-of-court conduct, and this court declined to infer the most damaging interpretation of the prosecutor‘s comment.
c. Although this court declined to decide whether the prosecutor‘s comment regarding M‘s credibility, that she was “open and honest” with certain aspects of the narcotics transaction, was improper, this court concluded that the defendant failed to establish a deprivation of his due process right to a fair trial; the comment was not severe, it was isolated, it was corrected by the prosecutor immediately, it was ameliorated by a specific jury charge, and much of the M‘s testimony was corroborated by other witnesses.
Argued January 6—officially released July 13, 2021
Procedural History
Substitute information charging the defendant with the crime of sale of narcotics, brought to the Superior Court in the judicial district of Litchfield at Torrington, geographical area number eighteen, and tried to the jury before Danaher, J.; thereafter, the court denied the defendant‘s motion for a mistrial; verdict and judgment of guilty; subsequently, the court denied the defendant‘s motion for a new trial, and the defendant appealed to this court. Affirmed.
Nancy L. Chupak, senior assistant state‘s attorney, with whom, on the brief, were Samantha L. Oden, deputy assistant state‘s attorney, Dawn Gallo, state‘s attorney, and David R. Shannon, supervisory assistant state‘s attorney, for the appellee (state).
Opinion
ALEXANDER, J. The defendant, John A. Massaro, appeals from the judgment of conviction, following a jury trial, of the sale of a narcotic substance in violation of
The jury reasonably could have found the following facts. On July 13, 2017, Matthew Faulkner, a Torrington police officer assigned to the narcotics division, was on duty when he observed two known narcotics users, Sarah Mikuski1 and her boyfriend, Anthony Roig, walking on East Main Street. Faulkner then saw the defendant approaching Mikuski and Roig. Faulker continued his surveillance of these individuals and watched as the defendant exchanged “something” with Mikuski. After this brief exchange, the defendant travelled in an opposite direction away from Mikuski and Roig.2 Believing that a “hand to hand” illegal narcotic transaction had just occurred, Faulker called for assistance, requesting that the responding officer intercept the defendant before he returned to his residence. The
Faulkner approached Mikuski and Roig. He instructed Mikuski to surrender the item that the defendant had given her. She complied and placed a small clear plastic bag containing a white powdery substance, later determined to be crack cocaine,3 on the wall next to them. Mikuski also emptied her purse, which contained an assortment of used drug paraphernalia, including empty wax packets, needles, crack pipes containing a burnt residue, and Brillo pads used to filter crack cocaine when it is smoked. Mikuski admitted that she handed the defendant a cigarette packet with $26 tucked inside it and purchased $30 worth of crack cocaine from the defendant.4 Mikuski also admitted that she had purchased illegal substances from the defendant in the past. Mikuski did not have any other illegal substances or cash in her possession.
The defendant subsequently was arrested and charged in an amended long form information with the sale of a narcotic substance in violation of
I
The defendant first claims that the court abused its discretion when it determined that defense counsel had violated discovery rules and by imposing a sanction as a result of that violation. The defendant argues that the court erred in finding that notes of his investigator, Benjamin Pagoni, constituted a statement as defined by the rules of practice. Specifically, the defendant contends that Pagoni‘s notes of the interview that he had conducted with Mikuski on March 5, 2018, did not constitute a statement and, accordingly, were not required to be disclosed to the state. The defendant also argues that, as a result of this ruling, the court erroneously imposed a sanction limiting Pagoni‘s testimony. We conclude that any error relating to the court‘s discovery ruling and sanction was harmless.
The following additional facts are necessary for the resolution of this claim. Pursuant to
Mikuski testified on cross-examination that she had spoken with Pagoni on March 5, 2018. She denied telling Pagoni that she had possessed narcotics prior to meeting with the defendant or that she was
After the state had rested, the court requested that defense counsel make an offer of proof regarding Pagoni and his testimony. Defense counsel stated that Pagoni worked as an investigator and would testify about a prior statement made to him by Mikuski that was inconsistent with her trial testimony identifying the defendant as the narcotics seller. Specifically, Pagoni would testify that Mikuski had told him that she possessed narcotics prior to meeting with the defendant on July 13, 2017, and that she gave narcotics to the defendant prior to her arrest. Defense counsel represented that he had communicated this information via e-mail to the prosecutor the day before.6 He further indicated that Pagoni had provided him with a memorandum detailing his conversation with Mikuski and that this memorandum (Pagoni memorandum) had been in his possession since approximately March 12, 2018.
The prosecutor argued that Miksuki‘s purported inconsistent statement should not be permitted into evidence because its disclosure had been untimely and thereby constituted a violation of our rules of discovery, specifically,
The court rejected defense counsel‘s position that the Pagoni memorandum, even if protected work product, was exempt from disclosure, citing
On January 11, 2019, the defendant filed a memorandum of law regarding the admissibility of Pagoni‘s proposed testimony and whether the Pagoni memorandum constituted a statement that should have been disclosed to the prosecutor.11 With respect to the Pagoni memorandum, the court
Defense counsel called Pagoni as a witness. He stated that he had met with Mikuski on March 5, 2018, and drove her to a nearby Wendy‘s restaurant. They ordered some food and spoke for approximately ten minutes. Pagoni testified that Mikuski had told him that she provided narcotics to the defendant on July 13, 2017. At this point, the court provided the jury with a limiting instruction that this testimony was to be used only for the purpose of impeaching Mikuski‘s prior statement that she had purchased narcotics from the defendant.12
During cross-examination, the prosecutor inquired about Pagoni‘s business relationship with defense counsel. Specifically, he asked how many hours Pagoni had worked on this case. When Pagoni replied that he was uncertain, the prosecutor asked: “So, as you sit here today, you remember specifically what . . . Mikuski said to you but you can‘t remember—you can‘t even approximately—how many hours you worked on this case?” Pagoni, indirectly referring to his memorandum, answered: “I can remember what . . . Mikuski said to me because it‘s written down.” The prosecutor objected on the ground that Pagoni‘s answer was nonresponsive. The court excused the jury and reminded counsel that, during conversations in chambers and on the record, it had indicated that the Pagoni memorandum would not come into evidence. The court then admonished Pagoni and directed him to refrain from mentioning that he had written down or memorialized Mikuski‘s statements during his testimony. The court iterated this ruling to both defense counsel and Pagoni. The court subsequently instructed the jury to disregard any reference in Pagoni‘s testimony to a written memorandum. After the prosecutor‘s cross-examination resumed, Pagoni stated that Mikuski appeared to be under the influence of heroin when he had spoken with her on March 5, 2018. He also admitted that he did not record Mikuski‘s statement or ask her to make a formal written statement. Additionally, Pagoni acknowledged that he had not asked whether Mikuski had purchased narcotics from the defendant in the past, or why she would
Following the close of evidence, the defendant moved for a mistrial on the basis that the prosecutor had impugned the character of defense counsel when he mentioned the late disclosure of Mikuski‘s purported statement. The prosecutor disputed the assertion that the character of the defense counsel had been impugned as a result of the cross-examination of Pagoni. The court agreed with the prosecutor and denied the motion for a mistrial.
On February 14, 2019, the defendant filed a motion for a new trial pursuant to
On May 17, 2019, the court issued a corrected memorandum of decision denying the defendant‘s motion for a new trial. It again concluded that the Pagoni memorandum constituted a statement for purposes of
On appeal, the defendant claims that “the trial court abused its discretion in sanctioning the defendant by limiting the use of Pagoni‘s testimony and limiting his ability to answer the state‘s question about how he recalled what Mikuski said.” He further contends that he was harmed as a result of this abuse of discretion. Specifically, he argues that the Pagoni memorandum of the interview with Mikuski did not constitute her statement for purposes of
In its appellate brief, the state acknowledged that, based on the relevant case law and the facts of this case, “it does not appear that Pagoni‘s memorandum constituted a statement by Mikuski under either subsection of
We begin our analysis by setting forth our standard of review and the relevant law. The defendant filed a motion for a new trial pursuant to
This standard also applies to the court‘s ruling related to discovery. State v. Manousos, 179 Conn. App. 310, 334, 178 A.3d 1087, cert. denied, 328 Conn. 919, 181 A.3d 93 (2018). In that case, we stated: “[T]he purpose of criminal discovery is to prevent surprise and to afford the parties a reasonable opportunity to prepare for trial. . . . To that end, [t]he trial court has broad discretion in applying sanctions for failure to comply with discovery orders. . . . We review the court‘s actions in managing discovery pursuant to the abuse of discretion standard.” (Citations omitted; internal quotation marks omitted.) Id.; see also Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 507, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d 1107 (1988).
With respect to nonconstitutional claims, a defendant must show harm resulting from the error. See State v. Jones, 205 Conn. 723, 728 n.1, 535 A.2d 808 (1988). Accordingly, we apply a harmless error analysis to a motion for a new trial filed pursuant to
The test for harmless error is well established. “When an error is not of constitutional magnitude, the defendant bears the burden of demonstrating that the error was harmful. . . . The proper standard for review of a defendant‘s claim of harm is whether the jury‘s verdict was substantially swayed by the error. . . . Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citation omitted; internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 553, 34 A.3d 370 (2012); see also State v. Jackson, 334 Conn. 793, 818, 224 A.3d 886 (2020).
We agree with the parties that the trial court improperly determined that the Pagoni memorandum constituted Mikuski‘s statement, as defined by the relevant rules
After Mikuski was stopped by Faulkner, she placed the bag of crack cocaine and her used drug paraphernalia on a nearby wall. At the time of her arrest, Mikuski did not have any money, as she had given the $26 to the defendant for the bag of narcotics. Mikuski indicated that except for one time in the past, she “never had the means or the money to be able to sell drugs.”
Faulkner testified that he knew Mikuski and Roig as “heavy” narcotics users. When he saw them on July 13, 2017, his intention was to observe them and see if they would purchase narcotics from someone. Faulkner stated that he observed the defendant exchange “something” with Mikuski. He then requested assistance from additional officers and stopped Mikuski and Roig because he believed an illegal narcotics transaction had just occurred. Mikuski opened her hand and emptied her purse, which contained a clear plastic cellophane bag with crack cocaine and various used pieces of drug paraphernalia, respectively. Faulkner seized this contraband. He also stated that Mikuski did not have any money on her person at this time.16 Faulkner observed that the seized crack pipes contained a burnt residue.
Roig testified that on July 13, 2017, his intention was to consume drugs with Mikuski. Roig indicated on that date, Mikuski had money to purchase drugs, met with another individual, and then came back with drugs. During redirect examination, Roig stated that he was with Mikuski as she purchased drugs for them to use.
During cross-examination, Pagoni testified, based on his thirty-four years of law enforcement experience, that individuals addicted to heroin generally do not give their drugs away for free. He admitted that addicts usually do not hold onto drugs before consuming them. Pagoni also stated, based on his experience, that quick, hand-to-hand transactions involving drugs are done to avoid detection and, if an individual had drugs in his or her hand, that would indicate a recent transaction.17
Additionally, as noted in the state‘s brief, the defendant was able to present to the jury the fact that Mikuski had made a
II
The defendant next claims that the court abused its discretion with respect to the evidentiary ruling regarding the state‘s cross-examination of Pagoni. Specifically, he argues that the court improperly permitted the prosecutor to convert Pagoni, a defense witness, into an expert regarding narcotics trafficking after the parties had agreed that the state would not present expert testimony on this topic. We conclude that any error was harmless.
The following additional facts are necessary for our discussion. The defendant filed a pretrial motion for supplemental discovery on December 4, 2018, seeking information regarding the narcotics unit of the Torrington Police Department, any records of narcotics arrests made by Faulkner, as well as his training, experience, and education relating to the investigation of narcotics crimes. Approximately one month later, the defendant filed a motion in limine to preclude the state‘s witnesses “from giving expert testimony or opinion testimony regarding drug trafficking or common characteristics of drug dealers.” He also moved for the disclosure of the curriculum vitae of any expert witness for the state, the substance of any facts relied on by the state‘s experts, and a summary of each expert‘s opinion. Prior to the court addressing these motions, the parties reached an agreement. In their agreement, the state indicated that it would not present expert testimony from its witnesses regarding narcotics trafficking.
During the trial, the defense called Pagoni as a witness. He stated that he had been a Connecticut state trooper for approximately thirty-four years and that in his career he had worked in a variety of assignments, including the narcotics division. During cross-examination, the prosecutor asked if people who possessed drugs normally carried them in their hands while walking down the street. The court overruled an objection based on speculation, and Pagoni responded that sometimes that does, in fact, occur. The prosecutor continued to question Pagoni regarding certain aspects of drug transactions without objection.
After the cross-examination addressed other topics, the prosecutor asked Pagoni whether drug dealers generally prefer not to conduct sales inside their homes or apartments. Defense counsel objected, arguing that it called for speculation and improper opinion testimony, as Pagoni had not been offered as an expert witness. The court overruled the objection, stating that
After these questions, the court excused the jury. Defense counsel noted that he objected to the entire line of questioning. He stated that, based on his understanding of the parties’ agreement, no opinion testimony regarding the narcotics trade would be permitted at trial and that Pagoni had not been offered as an expert. Defense counsel also moved for a mistrial. The prosecutor countered that the agreement of the parties only prevented the state from calling expert witnesses.19
The court ruled that Pagoni had not testified as an expert for the defense or for the state. It further determined that the state was entitled to cross-examine Pagoni to challenge his credibility regarding his law enforcement background and, specifically, his experience in the narcotics division. The court overruled the defendant‘s objection and denied his motion for a mistrial.
Defense counsel iterated his arguments regarding the state‘s cross-examination of Pagoni in his motion for a new trial. Specifically, he stated that this cross-examination focused on the issues of narcotics dealing and addiction, and involved expert testimony from an experienced law enforcement officer well beyond the ken of an average member of the jury.20 In conclusion, the defendant
On appeal, the defendant claims that the court abused its discretion by permitting the state to go beyond the scope of the direct examination of Pagoni and to “convert” him into an expert witness. Even assuming, arguendo, that the court‘s evidentiary rulings regarding the state‘s cross-examination of Pagoni constituted an abuse of discretion,21 we conclude that any such error was harmless.22
“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . We have concluded that a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . We previously have considered a number of factors in determining whether a defendant has been harmed by the admission or exclusion of particular evidence. Whether such error is harmless in a particular case depends [on] a number of factors, such as the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case. . . . Considering these various factors, we have declared that the proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury‘s verdict was substantially swayed by the error.” (Internal quotation marks omitted.) State v. Edwards, 202 Conn. App. 384, 403, 245 A.3d 866, cert. denied, 336 Conn. 920, 246 A.3d 3 (2021); see also State v. Kirsch, 263 Conn. 390, 412, 820 A.2d 236 (2003) (defendant must prove abuse of discretion and harm that resulted from such abuse to establish reversible error from evidentiary impropriety).
III
Last, the defendant claims that he was deprived of his due process right to a fair trial as a result of prosecutorial impropriety. Specifically, he argues that prosecutorial impropriety occurred during the cross-examination of Pagoni and during closing argument and that he suffered prejudice as a result. The state counters that there was neither impropriety nor prejudice in this case. We conclude that the defendant failed to establish that his due process right to a fair trial were violated as a result of prosecutorial impropriety.
We begin with the relevant legal principles. “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 had deprived the defendant of his due process [right] to a fair trial. . . . The defendant has the burden to show both that the prosecutor‘s conduct was improper and that it caused prejudice to his defense. . . .
“In determining whether the defendant was deprived of his due process right to a fair trial, we are guided by the factors enumerated by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). 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. . . . [A] reviewing court must apply the Williams factors to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the [impropriety] is viewed in light of the entire trial. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Sinclair, 332 Conn. 204, 236-37, 210 A.3d 509 (2019); see also State v. Thomas, 177 Conn. App. 369, 405, 173 A.3d 430, cert. denied, 327 Conn. 985, 175 A.3d 43 (2017).
“[T]he touchstone of due process analysis in cases of alleged prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor‘s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . In determining whether the defendant was denied a fair trial [by virtue of prosecutorial impropriety] we must view the prosecutor‘s comments in the context of the entire trial.” (Internal quotation marks omitted.) State v. Andrews, 313 Conn. 266, 279, 96 A.3d 1199 (2014). Guided by these principles, we address each of the claimed improprieties in turn.
The defendant first claims that impropriety occurred during the prosecutor‘s cross-examination of Pagoni. The prosecutor asked if Pagoni knew that the state had been unaware of the statement Mikuski purportedly had made to him at the Wendy‘s restaurant regarding the possession of the narcotics. The court overruled a relevance objection made by defense counsel. The prosecutor then stated: “You‘re aware that what you testified to today, what you claim [Mikuski] said to you at the Wendy‘s, that wasn‘t made—the state—you did not make the state or [defense counsel] did not make the state aware of that until the day before the trial. You can look at me. You don‘t need to look at [defense counsel].” Defense counsel again objected, and an off-the-record discussion occurred. Pagoni then admitted that he knew that the state did not learn about his claim regarding Mikuski‘s statement at the Wendy‘s restaurant until the day before the trial.
Later, Pagoni stated that, in the past, when he took statements that tended to exculpate someone, he had shared that information with a prosecutor, and, in one instance, “well in advance” of the trial. The court overruled defense counsel‘s objection based on relevance. Finally, Pagoni stated that his company‘s website advertised that it maintained “excellent relationships with local and state law enforcement . . . .”
Subsequently, and outside of the presence of the jury, defense counsel moved for a mistrial based on these matters. Specifically, he argued: “[T]here were some questioning early on in the examination of Mr. Pagoni with respect to the disclosure of the oral statement—yeah, it was relating to the contents of the oral statement in that it questioned along the lines that [defense counsel] just disclosed that last night. I think that‘s improper, Your Honor, and I objected because I thought it was improper. I think it impermissibly impugns my character [and] integrity. The discovery rules aren‘t really something for the jury to consider. Other than me taking the stand to explain it to the jury, there‘s no real way to rebut that. There‘s no witness that I‘m prepared to call that can explain why that happened or our position with it so it paints the defense and in particularly me in a negative light in front of the jury. I think it is detrimental to my client‘s right to a fair trial so that is my objection and just in case I need to do it for the record, Your Honor, I would ask for a mistrial based on that improper comment and the impact it may have to my client‘s right to a fair trial.”
The prosecutor countered that the questions were not intended to impugn the integrity of defense counsel, nor did they do so; rather, they contrasted the statement on Pagoni‘s website and what had occurred in the present case with respect to the disclosure of Mikuski‘s purported statement. The court, after noting its agreement with the prosecutor, stated: “What [the prosecutor] established was a fact, that he only received the information on the eve of trial. That was a simple fact. As to whether it was improper or not, there‘s no evidence before the jury as to whether it was improper or not. There‘s no evidence and nor should there be that the jurors know the rules of the Practice Book, the rules of discovery, when statements should be produced. It also is appropriate because the state only had the opportunity to do whatever investigation it could yesterday and the questioning serves to explain to the jury why the investigation of Mr. Pagoni took place yesterday. . . . And so [the state has] the right to establish
“We are mindful . . . of the unique responsibilities of the prosecutor in our judicial system. . . . [T]he prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel.” (Citation omitted; internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 82, 3 A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011); see also State v. Fasanelli, 163 Conn. App. 170, 180, 133 A.3d 921 (2016); State v. Kendall, 123 Conn. App. 625, 643, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).
We agree that the challenged actions of the prosecutor during the cross-examination of Pagoni did not impugn the integrity of defense counsel. The thrust of the prosecutor‘s inquiry was on the actions of Pagoni, and not of defense counsel. Specifically, the prosecutor highlighted for the jury the contrast of the statements on his company‘s website and Pagoni‘s actions in the present case. This line of inquiry served to challenge Pagoni‘s credibility, rather than to demean the integrity or role of defense counsel. See State v. Fasanelli, supra, 163 Conn. App. 180 (distinction between argument that disparages integrity or role of defense counsel and one that disparages theory of defense); State v. Kendall, supra, 123 Conn. App. 643-44 (prosecutor‘s closing argument highlighted difference between state‘s and defendant‘s versions and inferences of case). Additionally, we note that the prosecutor did not mention our rules of practice regarding the timing of discovery materials to the jury. For these reasons, we conclude that the defendant has failed to establish that any impropriety occurred during the prosecutor‘s cross-examination of Pagoni.
The defendant next argues that two instances of prosecutorial impropriety occurred during closing argument. “[O]ur Supreme Court has acknowledged that prosecutorial impropriety of a constitutional magnitude can occur in the course of closing arguments. In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [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 argument. . . . While a prosecutor may argue the state‘s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Consequently, the state must avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury‘s attention from [its] duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Carey, 187 Conn. App. 438, 454-55, 202 A.3d 1067 (2019), aff‘d, 337 Conn. 54, 251 A.3d 609 (2020).
During closing argument, the prosecutor stated: “It is extremely important when you reach your verdict that feelings of sympathy don‘t come into play. And again, we‘re asking for something that might be counterintuitive for some of you. Some people may come in here and say, listen, it is what it is. I call it how I see it and that‘s it. It‘s not a big problem for me. Some people may say that and then not realize that sympathy does, kind of, trickle into your deliberations, we‘re humans. Some people come in and say, no, I know it‘s going to be an issue, but I can put it out of my mind and I‘m sure they can. It‘s extremely important that you don‘t sit there
After the arguments of counsel had been completed, defense counsel objected to the prosecutor‘s comment regarding the in-court behavior of the defendant. He argued that this comment suggested that the prosecutor had knowledge of how the defendant may have acted outside of the courtroom and, thus, amounted to a comment based on facts not presented to the jury. The court determined that the comment constituted a compliment and was made in the context that the jurors should not allow sympathy to play any role in their deliberations, and thus was permissible.
Our Supreme Court has noted that, “[w]hile 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.) State v. Luster, 279 Conn. 414, 429, 902 A.2d 636 (2006); see also State v. Fernandez, 169 Conn. App. 855, 869, 153 A.3d 53 (2016) (when prosecutor suggests facts not in evidence, there is risk that jury may conclude he has independent knowledge of fact that could not be presented during trial); State v. Campbell, 141 Conn. App. 55, 66, 60 A.3d 967 (statements regarding facts that have not been proven amount to unsworn testimony and are not subject of proper closing argument), cert. denied, 308 Conn. 933, 64 A.3d 331 (2013). It also recognized that “closing arguments of counsel . . . are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial [impropriety], they do suggest that 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.” (Emphasis added; internal quotation marks omitted.) State v. Luster, supra, 279 Conn. 441.
We conclude that the prosecutor‘s comment regarding the defendant‘s in-court behavior was not improper. This remark was made in the context of the prosecutor‘s proper comments that the jurors were required to put aside any sympathy for the defendant, due to his age, and to decide the case based on the evidence presented. See State v. James E., 154 Conn. App. 795, 828, 112 A.3d 791 (2015), aff‘d, 327 Conn. 212, 173 A.3d 380 (2017). Further, the challenged comment focused solely on the defendant‘s good in-court behavior and did not suggest, in any manner, any sort of illicit or untoward out-of-court conduct. We decline to infer the most damaging interpretation of the prosecutor‘s comment.
The second challenged comment during closing argument occurred during the prosecutor‘s summary of the narcotics transaction. Specifically, the prosecutor stated: “[Faulkner] believed [that Mikuski and Roig] were about to make a drug deal, purchase drugs. And you know what, he was right. The evidence bears it out because she had the drugs in her hand. Literally, in her hand. She hadn‘t even put them in her pocket or put in her purse with all the paraphernalia.
“Yes, Sarah Mikuski, she lied. Lied to the police, she stole, she lied to her friend. She was open and honest with that. Well, I
Outside of the presence of the jury, defense counsel objected to the prosecutor‘s comment that Mikuski was “open and honest.” The prosecutor acknowledged that he “inartfully” commented but claimed that it constituted fair argument to defense counsel‘s comments regarding Mikuski. The court disagreed with the prosecutor that his statement constituted a fair response, but noted that he had corrected it immediately.
“[A] prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . 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. . . . 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.” (Internal quotation marks omitted.) Id., 279 Conn. 435; see also State v. Williams, 200 Conn. App. 427, 440, 238 A.3d 797, cert. denied, 335 Conn. 974, 240 A.3d 676 (2020); State v. Jerrell R., 187 Conn. App. 537, 553, 202 A.3d 1044, cert. denied, 331 Conn. 918, 204 A.3d 1160 (2019).
Assuming, without deciding, that the prosecutor‘s “open and honest” comment was improper, we conclude that the defendant failed to establish a deprivation of his due process right to a fair trial. See State v. Papantoniou, 185 Conn. App. 93, 108, 196 A.3d 839, cert. denied, 330 Conn. 948, 196 A.3d 326 (2018); State v. Aviles, 154 Conn. App. 470, 486, 106 A.3d 309 (2014), cert. denied, 316 Conn. 903, 111 A.3d 471 (2015); see generally State v. McCoy, 331 Conn. 561, 571 n.4, 206 A.3d 725 (2019). Considering the Williams factors, we conclude that the challenged comment was not severe, was isolated, was corrected by the prosecutor immediately, and was ameliorated by a specific jury charge.23 We also note that much of Mikuski‘s testimony was corroborated by other witnesses, namely,
The judgment is affirmed.
In this opinion the other judges concurred.