STATE OF CONNECTICUT v. MATTHEW O’BRIEN-VEADER
(SC 19038)
Supreme Court of Connecticut
Argued January 14—officially released September 8, 2015
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.
James B. Streeto, assistant public defender, for the appellant (defendant).
James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Terrence Mariani and Amy L. Sedensky, senior assistant state’s attorneys, for the appellee (state).
******************************************************
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch,
******************************************************
Opinion
ROBINSON, J. The principal issue in this appeal requires us to determine when a prosecutor’s apparent breach of a trial court ruling becomes prosecutorial impropriety implicating a defendant’s due process right to a fair trial, rather than an evidentiary matter without constitutional import. The defendant, Matthew O’Brien-Veader, appeals1 from the judgment of the trial court, rendered after a jury trial, convicting him of murder in violation of
The record reveals the following facts, which the jury reasonably could have found, and procedural history. In the spring of 2009, the defendant was twenty-one years old and working for a residential construction company. He shared an apartment in Waterbury with several friends and coworkers in a multifamily house on East Liberty Street. In June, 2009, the defendant quit his job and moved out of the apartment, despite being invited to remain there. The defendant then moved into an abandoned factory building in Waterbury where the victim, Joed Olivera, lived. The two men, who had been friendly since the defendant was fourteen years old, lived on the building’s third floor, which was full of garbage and laсked power and water. They shared a large mattress in that makeshift living space.
The relationship between the defendant and the victim rapidly deteriorated. The defendant stated that the victim ‘‘had been
The following day, June 9, 2009, the defendant returned to the factory. In a statement to police, the defendant recounted the events of that day as follows: ‘‘I just hung out with [the victim] all day at the factory. [The victim] said it was safe and he wasn’t going to do anything to me. I told [the victim] that if he had some kind of crush on me then he had to tell me so I could leave. I told [the victim] again that I had a girlfriend and I am not a fag. I asked him if I could trust him and he said ‘yes.’ Eventually I went to sleep . . . in the corner of the bed. But before I went to sleep I had a knife on me. . . . I went to sleep with the knife because if [the victim] tried any of the faggot shit with me I was going to kill him. If I felt a hand in the wrong place I probably would have cut his hand off. . . . I fell asleep and nothing happened that night.’’
The defendant’s statement continued: ‘‘For some reason when I woke up I felt like I was violated, I kept thinking about [the victim] saying he jerked off on me. Every minute that went by, I got madder and madder. [The victim] gave me [$10] and asked me to go [buy] beer . . . . I took the money and . . . bought a [$5] bag of . . . marijuana. I went back to the factory аnd stayed on the first floor and smoked some of the [marijuana]. I was pacing back and forth thinking about what I was going to do to [the victim]. I decided that I needed to kill [the victim] for what he did to me. I wanted answers from him and I was going to get them before I killed him.’’
The defendant then went upstairs to the third floor to see the victim, who asked why he had not purchased any beer. Following an angry exchange, in which the defendant asked the victim why he had ejaculated on him and the victim accused the defendant of being ‘‘selfish and . . . trying to screw him over’’ because of the beer money, the confrontation turned physical. The defendant believed that the victim saw his knife, which the defendant had hidden in the sleeve of his sweatshirt, and the victim started moving toward a second knife that was sticking out of a nearby wall. At that point, the defendant took the second knife out of the wall, grabbed the victim by the shoulder, and tried to throw him down a flight of stairs that led to the second floor. When the victim caught himself in the middle of the staircase, the defendant began to beat him repeatedly with a pair of crutches that the victim used because he had a foot injury.
The defendant then tried to push the victim through a hole in the floor at the bottom of the stairs so that the victim would fall down to the first floor. When the victim’s leg and part of his body were in the hole, he pleaded and apologized to the defendant, who continued to yell at him, ‘‘[w]hy did you do this to me . . . I trusted you, you were like a father to me.’’ After the victim climbed out of the hole, the defendant hit him with a metal rod and his fists. The defendant subse-quently forced the victim at knifepoint to go back up the stairs, so he could push him down a larger hole between the third and second floors. The defendant stated that he wanted the victim ‘‘to suffer and be tortured.’’ The defendant then pushed the victim through that hole, causing him to land on wood and debris on the second
After cleaning himself up and burying his blood covered knife and sweatshirt nearby, the defendant purchased a forty ounce container of Natural Light beer, returned to the factory, and poured some of it on the victim’s body ‘‘because . . . it was his favorite.’’ While sitting on the third floor, the defendant saw a note inviting him and the victim to come to the East Liberty Street house to meet some friends, among whom were Jason Benoit and Gary Peden. The defendant visited his friends at their house, and when Benoit asked the defendant where the victim was, the defendant—with no change in his ordinary demeanor—confessed what he had done. Benoit did not believe the defendant, so the defendant brought him to the factory and showed him the victim’s body. Benoit and the defendant then went to pick up O’Connor at her grandmother’s house in Naugatuck. The defendant also sought to retrieve his tools so that Benoit and Corey Bosse, another friend, could pawn them for him.
After he confessed to her, O’Connor did not believe what the defendant had done and wanted to see the body, so the defendant again returned to the factory with her, Benoit, and another friend, Dominic Wells. O’Connor and the defendant then went to Saint Mary’s Hospital in Waterbury where the defendant received treаtment for cuts to his hand sustained during his attack on the victim.
The defendant and O’Connor spent that night at his friends’ house on East Liberty Street. The following day, the defendant decided to leave Connecticut, and he and O’Connor began to walk to her grandmother’s home in Naugatuck. In the meantime, Bosse reported the defendant’s actions to the Waterbury police, who, with the subsequent assistance of Benoit, located the victim’s body on June 11, 2009. Waterbury police officers subsequently apprehended the defendant on his walk to Naugatuck, and he later confessed to Detectives Michael Slavin and Orlando Rivera.
The state charged the defendant with murder in violation of
On appeal, the defendant claims that: (1) numerous acts of prosecutorial impropriety during both the cross-examination of Feuerstein and closing arguments warrant reversal of his conviction; (2) the trial court improperly denied the defendant’s motions for a mistrial; (3) the evidence is insufficient to support the kidnapping and felony murder convictions; and (4) the trial court improperly precluded two defense witnesses from testifying. Additional relevant facts and procedural history will be set forth when necessary.
I
PROSECUTORIAL IMPROPRIETY
We begin with the defendant’s claim that the trial prosecutor6 ‘‘committed repeated, flagrant and egregious improprieties’’ during the cross-examination of Feuerstein and closing arguments, which deprived him of a fair trial. We address each specific claim of impropriety in turn.7
The following general background principles guide our analysis. ‘‘[A] claim of prosecutorial impropriety . . . even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535–40, 529 A.2d 653 (1987). . . . In analyzing claims of prosecutorial
A
Whether the Prosecutor Improperly Used Sarcasm, Personal Attacks, and Appeals to Emotion during Cross-Examination
We begin with the defendant’s challenges to certain of the prosecutor’s questions during his cross-examination of Feuerstein as containing improper sarcasm, personal attacks, and emotional appeals, namely: (1) a characterization of the defendant as ‘‘ ‘a mean and nasty person who was looking to kill somebody’ ’’; (2) a query that Feuerstein’s ‘‘ ‘testimony here is not really based on any hard science’ ’’; (3) creating images of the ‘‘defendant engaged in a murderous fight over $10’’; and (4) a ‘‘sneering comparison of the $10 given by the victim to the defendant to . . . Feuerstein’s hourly rate . . . .’’ In response, the state contends that, viewed in context, these questions were part of a legitimate challenge to the premise and reliability of Feuerstein’s expert testimony, including the exploration of alternative explanations for the defendant’s conduct besides extreme emotional distress. Having reviewed these claims in the context of the full record, we conclude that only the ‘‘mean and nasty’’ characterization was improper.
‘‘A basic and proper purpose of cross-examination of an expert is to test that expert’s credibility. . . . Thus, [i]t is well established that an expert witness can be examined concerning the factual basis of his [or her] opinion. . . . Consequently, [i]n cases [in which] the defendant places his [or her] mental status in issue, the basis for a psychiatric expert’s opinion is one of the things that the trier of fact may consider in evaluating the testimony of that expert.’’ (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 327, 746 A.2d 761 (2000). ‘‘Though it is manifestly the purpose of cross-examination to expose to the jury facts from which it may gauge the credibility of an expert witness . . . a prosecutor may not express his own opinion of the
Further, it is well settled that a ‘‘prosecutor may not appeal to the emotions of the jurors by engaging in character assassination and personal attacks against either the defendant or one of his witnesses. . . . A prosecutor may not ask a question or make a comment during cross-examination that suggests that the defendant has a bad character or propensity for criminal behavior.’’ (Citation omitted.) State v. Warholic, 278 Conn. 354, 389–90, 897 A.2d 569 (2006). ‘‘It must be acknowledged that the line between comments that risk invoking the passions and prejudices of the jurors and those that are permissible rhetorical flourishes is not always easy to draw. The more closely the comments are connected to relevant facts disclosed by the evidence, however, the more likely they will be deemed permissible.’’ State v. Albino, 312 Conn. 763, 773, 97 A.3d 478 (2014).
1
‘‘Mean and Nasty Person’’ Comment
We begin with the defendant’s claim that the prosecutor improperly referred to him during cross-examination as a ‘‘mean and nasty person who was looking to kill somebody.’’ Read in context, we agree with the defendant that this reference was an inappropriate personal attack that warranted the trial court’s exercise of its discretion to sustain the defendant’s objection to that question. A review of the transcript demonstrates that the ‘‘mean and nasty’’ comment apparently was posited as an alternative explanation to Feuerstein’s point that the defendant’s act was an uncharacteristic extreme emotional reaction to what he perceived as sexual misconduct by the victim.9 Contrary to the
Other Challenged Questions
We next turn to the defendant’s challenges to the prosecutor’s (1) suggestion that Feuerstein’s ‘‘ ‘testimony here is not really based on any hard science,’ ’’ (2) representation, during cross-examination, that the ‘‘defendant engaged in a murderous fight over $10,’’ and (3) ‘‘sneering comparison of thе $10 given by the victim to the defendant to . . . Feuerstein’s hourly rate . . . .’’
We first conclude that the prosecutor’s question asking whether Feuerstein would agree ‘‘that the substance of [his] testimony here is not really based on any hard science,’’ was, read in context, not a gratuitous personal attack on Feuerstein. Rather, that statement was a proper—albeit aggressively phrased—attack on the credibility of Feuerstein’s opinion by questioning him about the methods that yielded the underlying data.13 See State v. Wilson, supra, 308 Conn. 439–41 (concluding that prosecutor’s characterization
We similarly disagree with the defendant that the prosecutor improperly made a ‘‘disdainful comparison of $10 to [Feuerstein’s] stated hourly rate,’’ or used cross-examination questions to create the image of the ‘‘defendant engaged in a murderous fight over $10 . . . .’’ In context, those questions appear intended to highlight the importance of $10 to the defendant and the victim, who were homeless men, and make the point that a relatively insignificant amount of money could motivatе a homicide, thus providing an alternative explanation for Feuerstein’s theory that the killing was an emotional response to sexual advances by the victim.14 Nothing
In sum, these questions—although abrasively worded—are rooted in the evidence in the record and do not begin to approach the egregiousness of those at issue in State v. Maguire, supra, 310 Conn. 535. We conclude, therefore, that these questions did not amount to an improper personal attack on Feuerstein.
B
The Prosecutor’s Disregard of Certain Court Orders
The defendant next claims that the prosecutor improperly flouted numerous orders of the trial court while cross-examining Feuerstein. Specifically, the defendant challenges the prosecutor’s apparent: (1) reference in front of the jury to the trial court’s ruling holding certain of the defendant’s medical records inadmissible for purposes of cross-examination; (2) disregard of the trial court’s admonitions to phrase his questions to Feuerstein as hypotheticals, rather than assertions of fact; and (3) violation of a court order requiring the disclosure to the defendant of all uncharged misconduct evidence.
It ‘‘is well settled that prosecutorial disobedience of a trial court order, even one that the prosecutor considers legally incorrect, constitutes improper conduct.’’15 State v. Ortiz, 280 Conn. 686, 704, 911 A.2d 1055 (2006). In many cases, however, this black letter principle is easier stated than applied. A prosecutor’s advocacy obligations may occasionally drive him or her сlose to the line drawn by a trial court order regarding the use of certain evidence. See, e.g., State v. Warholic, supra, 278 Conn. 406–407 (prosecutor did not violate order precluding questions about substance abuse treatment, despite fact his questions about substance abuse itself resulted in warning from trial court that ‘‘this question concerning prejudicial and collateral matters put him ‘a half a step away from a mistrial’ ’’); State v. Williams, 102 Conn. App. 168, 181, 926 A.2d 7 (2007) (‘‘[a]lthough the prosecutor may have gone to the edge of the court’s order, we cannot say on the basis of the record before us that he deliberately violated the ruling or that he intended to undermine the authority of the court’’), cert. denied, 284 Conn. 906, 931 A.2d 267 (2007).
Even when it is determined that a prosecutor has breached a trial court order, it can be difficult to distinguish between a mere evidentiary misstep and a potential due process violation. Our cases do, however, provide some guiding principles. Not every misstep by a prosecutor that exceeds the bounds of a trial court order rises to the level of prosecutorial impropriety that implicates a defendant’s due process rights, thus requiring resort to the second step in the prosecutorial impropriety analysis. See State v. Santiago, 269 Conn. 726, 742, 850 A.2d 199 (2004) (‘‘it is the severity of the misconduct, considered in the context of the specific facts and circumstances of a particular case, as opposed to the intrinsic nature of the impropriety, that determines whether an impropriety is evidentiary or of constitutional magnitude’’); accord State v. Gibson, 302 Conn. 653, 663 n.4, 31 A.3d 346 (2011) (acknowledging that ‘‘there may be some overlap between the factors that the reviewing court considers when determining whether the prosecutor’s conduct was imрroper and those that it considers when conducting its constitutional analysis’’).
Whether a prosecutorial question or comment that runs afoul of a trial court order implicates a defendant’s due process rights is a case specific determination. This determination turns on the degree to which the breach undermines a trial court’s ruling that protects the integrity of the fact-finding process by restricting the admission of unreliable or unduly prejudicial evidence. See State v. Maguire, supra, 310 Conn. 558–60 (reference in objection to ‘‘ ‘full interview, and that’s not in evidence’ ’’ in questioning expert about inconsistencies in victim’s statement undermined decision for prosecutor and defendant to redact irrelevant portions of forensic interview transcript); State v. Payne, supra, 303 Conn. 565–66 (improper for prosecutor to link murder and jury tampering cases in summations when trial court stated it would not indicate that cases were legally related or permit prosecutor to argue that jury tampering was consciousness of guilt); cf. State v. Ubaldi, 190 Conn. 559, 573–74, 462 A.2d 1001 (1983) (unfair remark during summations asking jury to draw negative inference from witness’ absence that ‘‘implied that the defendant was obligated to produce a witness whose invocation of his constitutional right made it impossible to present his testimony,’’ particularly when that witness ‘‘had been identified as a ‘bookie,’ ’’ thus ‘‘undermin[ing] the authority of the trial court’s ruling that such a matter should not be considered by the jury’’), cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).16 To this end, a comment or question
1
Reference to Medical Records Not in Evidence
Relying on State v. Maguire, supra, 310 Conn. 535, the defendant first contends that the prosecutor improperly asked a question that included a ‘‘stage whisper’’17 about the trial court’s ruling that had deemed certain of the defendant’s medical records inadmissible for purposes of cross-examination. Specifically, the challenged question by the prosecutor included this preface: ‘‘Okay. And now, the records aren’t allowed to come in, but having . . . .’’ The state ‘‘does not dispute that this comment should not have been made,’’ but contends that ‘‘the record is inadequate to determine whether this was truly an instance of prosecutorial impropriety or . . . merely a matter of an improperly phrased question and, therefore, simply a claim of evidentiary error.’’ The state also contends that the remark was a ‘‘prefatory comment’’ that, when read in context, did not convey to the jury any ‘‘ ‘special knowledge’ ’’ about the content of the medical records. Moreover, the state contends that the jury was aware that the records had not been admitted into evidence because it was present when the state made the original motion. We agree with the defendant, and conclude that this comment was improper—albeit not as singularly egregious as the comment identified in Maguire.
The record reveals the following additional relevant facts and procedural history. The trial court declined to admit the defendant’s medical records into evidence on the ground that they were inadmissible under
‘‘[The Prosecutor]: I’m asking you as a health-care professional, isn’t it a good thing to get records that are very recent in time when trying to evaluate somebody’s mental state?
‘‘[Feuerstein]: Yes.
‘‘[The Prosecutor]: Okay. And now, the records aren’t allowed to come in, but having—
‘‘[Defense Counsel]: I object, Your Honor. Ask that [it] be stricken.
‘‘The Court: The jury should disregard that comment.
‘‘[The Prosecutor]: Without talking to us about the specifics of what’s in the records, are there items in there that you
We agree with the defendant that this comment, albeit prefatory, raised the specter of a ‘‘stage whisper’’ about materials contained in the medical records that the prosecutor knows might have some bearing on the case, but that the jury—for whatever reason—is not allowed to see. We recently held similar comments to be improper in State v. Maguire, supra, 310 Conn. 559, wherein a prosecutor made a comment during an objection to the defendant’s cross-examination of a forensic interviewer about inconsistencies in the victim’s statement, which referred to ‘‘ ‘the full interview, and that’s not in evidence.’ ’’ We agreed with the defendant that this remark ‘‘indicat[ed] that redacted portions of the transcript of the forensic interview refuted defense counsel’s assertion that [the interviewer] did not challenge the victim with respect to inconsistencies in the victim’s claims against the defendant . . . .’’ Id., 558. We observed that this comment, among other improprieties committed by the prosecutor, ‘‘conveyed to the jury that the defendant or defense counsel was not to be trusted. As this court previously has stated, 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 аccess to matters not in evidence . . . it is likely to infer that such matters precipitated the personal opinions.’’ (Internal quotation marks omitted.) Id., 562. Ultimately, on the record in Maguire, we concluded that this impropriety combined with others to deprive the defendant of his right to a fair trial. See Id., 560–62. Accordingly, following Maguire, we conclude that this comment was an impropriety that will require us to determine whether it violated the defendant’s right to a fair trial.
2
Disregard of Hypothetical Questions Ruling
The defendant next argues that the prosecutor improperly questioned Feuerstein about whether people kill each other over seemingly minor triggers like $10 or parking spaces. See footnote 14 of this opinion. Specifically, the defendant, in his reply brief, appears to contend that these questions: (1) violated a trial court order against hypothetical questions not based on evidence in the record or the defendant’s medical records; and (2) were not properly phrased as hypotheticals. In response, the state contends that, to the extent that the prosecutor violated the trial court’s ruling concerning the questioning of Feuerstein, those violations were the inadvertent product of good faith attempts to formulate meaningful questions in response to a confusing and legally erroneous interpretation of
The record reveals the following relevant facts and procedural history. Following a chambers conference and subsequent argument on the record, the trial court addressed the use of ‘‘hypothetical questions asked on cross-examination’’ and ruled that, ‘‘[w]hile on direct examination, a hypothetical question needs to be based on facts in evidence. A greater latitude may be submitted on cross-examination. Accordingly, subject to the court’s discretion in the cross-examination of an expert, any fact may be assumed in a hypothetical question to test the skill, learning, or accuracy of the expert or to ascertain the reasonableness . . . of the expert’s opinion. The citation is Floyd v. Fruit Industries, Inc., [144 Conn. 659, 666, 136 A.2d 918 (1957)].19 So the cross-examination of the expert does not have to include facts that are . . . in evidence in general terms.
* * *
‘‘So again, with respect to the hypothetical questions, as set out in the case law, the hypothetical question because it’s cross-examination can’t have facts other than those that are not . . . in evidence as part of the hypothetical.’’ (Footnote added.)
Following an objection by the defendant, the trial court later clarified that, under that ruling, the prosecutor was ‘‘not to . . . put into hypotheticals facts that are either not in evidence or part of the medical record. I heard nothing about killing someone for a spot—parking—that is in any way related to this case. Do you understand?’’
The record discloses that the atmosphere in the courtroom at that point may have been tense, insofar as the trial judge deemed it necessary to admonish the prosecutor about raising his voice in court, leading the prosecutor to apologize and confirm the scope of the clarified order.20 Nevertheless, we conclude that the prosecutor’s questions, although phrased in apparent violation of the court’s evidentiary ruling, did not rise to the level of an impropriety that is grist for the due process mill. The initial ruling that the trial court put on the record was not clear. Until the trial court’s subsequent clarification
Further, to the extent that the defendant attacks the prosecutor’s failure to indicate specifically that his questions were hypothetical in nature, wе conclude that this was an error of form that did not undermine a ruling protecting against the admission of evidence that the trial court had specifically identified as substantively unreliable or unduly prejudicial. Accordingly, we conclude that these erroneously phrased questions did not rise to the level of constitutional prosecutorial impropriety.
3
Breach of Orders with Respect to Uncharged Misconduct Evidence
The defendant next claims that the prosecutor improperly attempted to impeach Feuerstein’s testimony with ‘‘several instances of misconduct [that] had not been disclosed in response to the defendant’s pretrial pleading, and for which there was no basis in the record.’’ The only misconduct that receives any substantive briefing, however, is the defendant’s claim that the prosecutor improperly introduced evidence of his threat to stab someone 100 times with a knife, despite a ruling to the contrary. In an abundance of caution, and because they are intertwined, we also address the defendant’s apparent challenge to cross-examination questions that asked Feuerstein whether he was aware of (1) the defendant’s psychiatric hospitalization approximately one month before the homicide in this case ‘‘for threatening to kill or because he thought he was going to kill’’ O’Connor, and (2) an incident when the defendant’s friends took a knife away from him because they were afraid he was going to hurt O’Connor. The defendant posits that, based on an initial preclusive order regarding the 100 times threat, these references were inappropriate because the prosecutor ‘‘had been warned wеll in advance that these references were inadmissible.’’ The defendant also argues that the state failed to comply with an order granting the defendant’s motion directing the state to disclose the uncharged misconduct that it intended to use.
In response, the state argues that the trial court’s initial preclusive ruling was limited to the state’s case-in-chief, rather than for impeachment purposes. The state also contends that the prosecutor’s use of this uncharged misconduct evidence for impeachment purposes did not violate the terms of the court’s order on the defendant’s motion requiring the disclosure of uncharged misconduct evidence, which by way of its citation to State v. Acquin, 34 Conn. Supp. 152, 153, 381 A.2d 239 (1977), extended only to uncharged misconduct utilized to prove guilt, rather than for impeachment purposes. Contending that this misconduct did not become relevant until Feuerstein testified that the defendant had ‘‘ ‘no significant history of violence,’ ’’ the state also argues that the late disclosure by the defense of the voluminous medical records that had been reviewed by Feuerstein led to confusion on the part of the prosecutor about whether the knife incident was included in those records, and thus, was germane for cross-examination. We agree with the state, and conclude that any ostensible failure to comply with orders with respect to uncharged misconduct evidence did not rise to the level of constitutional prosecutorial impropriety.
We begin by reviewing the trial court’s orders with respect to uncharged misconduct evidence. The defen-dant filed a pretrial motion on November 28, 2011, ‘‘to require notice of uncharged misconduct evidence,’’ seeking that ‘‘the state be ordered to provide defense counsel with a written statement listing the nature, date and place of any and all criminal offenses or acts of misconduct . . . .’’ (Citation omitted.) As legal authority for the motion, the defendant cited
When Peden testified during the state’s case-in-chief, the prosecutor offered as uncharged misconduct evidence Peden’s observation, recorded in his statement to the police, that, approximately one week before the homicide in this case, the defendant had waved a large knife around and said that: ‘‘ ‘I just [want to] stab someone [100] times.’ ’’ After some argument centered on whether that conduct constituted a crime, the trial court ruled that it would not permit the prosecutor to question Peden about that incident because it was not ‘‘misconduct’’ subject to
Subsequently, while cross-examining Feuerstein, the prosecutor asked him, inter alia, whether he was aware of (1) the defendant’s psychiatric hospitalization approximately one month before the homicide in this case ‘‘for threatening to kill or because he thought he was going to kill’’ O’Connor, and (2) that the defendant’s friends had to take a knife away from him because they were afraid he was going to hurt O’Connor. See footnote 9 of this opinion. This line of questioning led to a multifaceted objection from the defendant.22
C
Closing Argument Impropriety
Finally, the defendant challenges certain aspects of the state’s closing and rebuttal arguments. In particular, the defendant challenges the prosecutor’s arguments that: (1) ‘‘common sense tells you that the version of events that [the defendant] gives just doesn’t make sense. There’s nothing corroborating his statement that there were unwanted sexual advances’’; and (2) the ‘‘defendant in the beginning tried to immediately set up a motive or an excuse as to why it was that he committed
‘‘The parameters of the term zealous advocacy are . . . well settled. . . . [A] prosecutor may not express his [or her] own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Such expressions of persоnal 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 opin-ion 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 persuade them to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand.’’ (Citation omitted; internal quotation marks omitted.) State v. Ciullo, 314 Conn. 28, 40–41, 100 A.3d 779 (2014).
Further, 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. . . . Our jurisprudence permits these statements from the prosecution, if properly presented . . . .’’ (Citation omitted; internal quotation marks omitted.) Id., 45–46; see also, e.g., State v. Long, supra, 293 Conn. 41–42. The prosecutor may also make these arguments with respect to the credibility of statements by the defendant himself, so long as they are rooted in the evidence at trial. See, e.g., State v. Medrano, 308 Conn. 604, 616–19, 65 A.3d 503 (2013) (prosecutor properly argued defendant was not credible because of evidence that he had larceny conviction and had lied on job application, and had motive to lie); see also State v. Smalls, 78 Conn. App. 535, 542–43, 827 A.2d 784 (2003) (prosecutor may properly comment on defendant’s ‘‘voluntary pretrial statements if the defendant relies on those statements for a defense’’ and comment does not burden defendant’s right not to testify), cert. denied, 266 Conn. 931, 837 A.2d 806 (2003).
Finally, in evaluating claims of impropriety during summation, we recognize that ‘‘the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered . . . .’’ (Internal quotation marks omitted.) State v. Albino, supra, 312 Conn. 772. ‘‘When making closing arguments to the jury . . . [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. . . . Thus, as the state’s advocate, a 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. Medrano, supra, 308 Conn. 611.
Read in context, we conclude that the prosecutor’s arguments that the defendant’s statement and theory did not ‘‘make sense’’ were not improper. Specifically, the prosecutor cited ample evidence from the trial record to establish that the defendant was not homophobic—let alone violently so. The prosecutor, therefore, properly argued that the defendant’s extreme emotional disturbance defense, as rooted in deep homophobia, ‘‘did not make sense’’ given the evidence in the record ‘‘that he acted exactly the opposite of someone who would be homophobic,’’ by maintaining friendships with openly gay men and by not reacting negatively to a same sex sexual encounter that he had at a party. See footnote 31 of this opinion. Accordingly, we conclude that the challenged remarks during closing argument were not prosecutorial impropriety.
D
Williams Due Process Analysis
Having identified two instances of impropriety during cross-examination, namely, the prosecutor’s description of the defendant as a ‘‘mean and nasty person who was looking to kill somebody,’’ and his reference to the records that the trial court had declined to admit; see parts I A 1 and I B 1 of this opinion; we now determine whether they violated the defendant’s 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. . . .
‘‘We recently clarified that when a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show, not only that the remarks
Reviewing the six Williams factors, we agree with the state and conclude that the two identified improprieties did not deprive the defendant of his right to a fair trial. We acknowledge that the defendant did nothing to invite them, and, in fact, thought both significant enough to warrant both an objection when made and later serve as a partial basis for a mistrial motion. See also part II of this opinion. Nevertheless, these two improprieties were confined to the cross-examination of Feuerstein and, therefore, were not frequent. Second, they also were not particularly severe, especially when contrasted with the more vituperative language considered in some of our other cases; see footnote 10 of this opinion; and the more focused stage whisper at issue in State v. Maguire, supra, 310 Conn. 558–60, wherein the prosecutor directly highlighted the existence of redacted portions of records while questioning an expert about inconsistencies in those records that had been admitted into evidence. Third, the improprieties were not particularly central to the state’s case against the defendant or its attempt to refute the special defense—the prosecutor did not address Feuerstein’s testimony at all during closing or rebuttal arguments. Fourth, the state’s case against the defendant as explained during summations—including with regard to responding to the defendant’s extreme emotional disturbance defense—was very strong and rooted largely in the defendant’s own statement and the gravity and severity of the victim’s injuries. Finally, to the extent there was any harm, it was mitigated by the trial court’s prompt curative instruction directing the jury to disregard the improper questions, which we presume the jury followed. See, e.g., State v. Payne, supra, 303 Conn. 567–68; State v. Warholic, supra, 278 Conn. 404. Accordingly, we conclude that these two isolated instances of prosecutorial impropriety did not deprive the defendant of a fair trial and, therefore, do not warrant reversal of this conviction.24
MISTRIAL MOTIONS
We next address the defendant’s claim that the trial court improperly denied his two motions for a mistrial based on the improper presentation of uncharged misconduct evidence. The defendant contends that the trial court should have granted his motions for a mistrial upon: (1) a spontaneous statement by Richard Innaimo, a Waterbury police detective, that he had utilized ‘‘a booking photo[graph] with a physical description from a previous arrest’’ to aid in apprehending the defendant; and (2) the prosecutor’s use of assertions of fact, rather than hypothetical questions, to cross-examine Feuerstein about prior misconduct by the defendant such as threats to kill O’Connor and his friends taking a knife away from him.25 In response, the state argues that the trial court did not abuse its discretion in determining that striking the challenged
evidence and issuing a curative instruction was an adequate remedy short of declaring a mistrial. We agree with the state, and conclude that the trial court did not abuse its discretion by denying the defendant‘s motions for a mistrial.
The record reveals the following additional relevant facts and procedural history.26 Innaimo testified that he had been assigned to assist with the apprehension of the defendant by the Waterbury police. The prosecutor asked Innaimo whether he had “look[ed] at any type of photograph or learn[ed] any other biological information about” the defendant prior to going out to look for him. Innaimo then responded that he “had a booking photo[graph] with a physical description from a prior arrest.” After Innaimo testified about the events concerning the apprehension of the defendant, the defendant asked to be heard outside the presence of the jury, and moved for a mistrial, arguing that the “inquiry and response in regards to the identification
Subsequently, an evidentiary dispute arose about the potential introduction of evidence of uncharged misconduct during the cross-examination of Feuerstein via questions phrased as assertions of fact, rather than as hypotheticals. See part I B 2 of this opinion. Defense counsel renewed his previous motion for a mistrial arising from Innaimo‘s reference to a booking photograph, and stated, “at this point, the court is not just looking at that one isolated statement,” arguing that “it‘s the cumulative nature of a variety of things that have occurred that, in my opinion, are beyond any instruction the court can give” with respect to preserving the defendant‘s right to due process and fundamental fairness. The defendant again challenged the prosecutor‘s “mean and nasty person” question; see part I A 1 of this opinion; and the phrasing of questions using assertions of fact rather than hypotheticals, in particular the questions about the defendant‘s threats toward O‘Connor, and the fact that his friends had to take his knife away. In response, the prosecutor argued that the “mean and nasty person” comment was an alternative theory for the homicide, and that the evidence of the defendant‘s threatening behavior was rooted in his medical records.
After ruling on the hypothetical phrasing, the trial court denied the mistrial motion, stating that the jury would be instructed that the prosecutor‘s statements were not evidence, and those references would be stricken from the record. The trial court then instructed the jury accordingly.28
“The standard for review of an action upon a motion for a mistrial is wеll established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . . .
If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Ortiz, supra, 280 Conn. 702. Further, in “reviewing a claim of abuse of discretion, we have stated that [d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. . . . Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.” (Internal quotation marks omitted.) Id., 703.
As previоusly discussed in part I B 2 of this opinion, we conclude that the prosecutor‘s breach of the trial court‘s evidentiary ruling by questioning Feuerstein using assertions of fact, rather than hypotheticals, to describe certain instances of prior misconduct, did not implicate the defendant‘s due process rights. We also conclude that the brief reference to the booking photograph, while unfortunate, was not excessively prejudicial because neither the prosecutor nor Innaimo dwelt on that point, and there was mention of the crime that formed the basis for the arrest. The trial court, therefore, reasonably could have concluded that any prejudice to the defendant, including that created by the “mean and nasty person” comment, would be addressed adequately by a curative instruction. Accordingly, we conclude that the trial court did not abuse its discretion by denying the defendant‘s various motions for a mistrial.
III
SUFFICIENCY OF THE EVIDENCE
We next address the defendant‘s claim that there is insufficient evidence to support his conviction for kidnapping in the second degree, which serves as the predicate for his felony murder conviction. Relying on, inter alia, State v. Salamon, supra, 287 Conn. 509, and State v. Ward, 306 Conn. 718, 51 A.3d 970 (2012), the defendant contends that there is insufficient evidence to establish beyond a reasonable doubt that there was confinement or movement of the victim beyond that incidental to the commission of another crime, in this case, murder.29 In response, the state, citing Ward, supra, 718, and State v. Miranda, 145 Conn. App. 494, 75 A.3d 742, cert. granted on other grounds, 310 Conn. 942, 79 A.3d 894, cert. denied, 310 Conn. 942, 79 A.3d 893 (2013), contends that the kidnapping conviction is supported by the defendant‘s admission that he wanted to torture the victim, as evinced by the length of confinement and his acts of moving the victim to numerous locations within the factory before ultimately killing him. We agree with the state, and cоnclude that
“In reviewing a sufficiency of the evidence claim, we 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Gonzalez, 311 Conn. 408, 419, 87 A.3d 1101 (2014); see also id., 419-20 (setting forth more detailed recitation of standard).
“[I]n State v. Salamon, supra, 287 Conn. 542, this court reconsidered its prior interpretation and construction of the kidnapping statutes and concluded that [o]ur legislature . . . intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim‘s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.
“Although our holding in Salamon constituted a significant change with respect to our interpretation of the kidnapping statutes, we emphasized that [o]ur holding does not represent a complete refutation of the principles established by our prior kidnapping jurisprudence. First, in order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement. When that confinement or movement is merely incidental to the commission of another crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts . . . . In other words, the test . . . to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.” (Internal quotation marks omitted.) State v. Ward, supra, 306 Conn. 731-32; see also State v. Salamon, supra, 287 Conn. 547-48 (describing factors jury should consider in determining whether “restraint was not merely incidental to the commission of some other, separate crime” [emphasis omitted]).
Based upon the facts in the record and the reasonable inferences that they support, we conclude that sufficient evidence underlies the defendant‘s conviction of second degree kidnapping. Consistent with the defendant‘s desire that the victim “suffer and be tortured,” there was sufficient evidence under which the jury could have found beyond a reasonable doubt that the defendant‘s movement and confinement of the victim was not merely incidental to the crime of murder, insofar as he engaged in conduct beyond that necessary to hold the victim down and stab him to death. Specifically, in a protracted altercation, the defendant prevented the victim‘s escape
IV
PRECLUSION OF DEFENSE WITNESSES
The defendant‘s final claim is that the trial court improperly barred the testimony of two witnesses who would have corroborated aspects of his extreme emotional disturbance defense, specifically: (1) Christopher Veader, the defendant‘s brother, who would have testified about child sexual abuse in their family; and (2) Rene Ingram, who would have testified to a same sex sexual encounter with the victim. The defendant contends that the trial court‘s order: (1) was an improper grant of an oral motion in limine in violation of
The record reveals the following additional relevant facts and procedural history. During trial, the defendant advised the trial court that the anticipated testimony of Veader and Ingram presented issues to be resolved outside the presence of the jury. The defendant proffered Veader to testify that he had been sexually abused
The defendant proffered Ingram to testify about a same sex sexual encounter with the victim after a party in 1991, eighteen years prior to the victim‘s death. The defendant argued that Ingram‘s testimony would establish that the victim was gay and had solicited sexual acts, thus supporting the theory of his defense. After Ingram testified in an offer of proof, the trial court excluded that testimony, concluding that the incident was “too remote in time” and “could lead to confusion on the part of the jury.”
The defendant‘s claims arising from the exclusion of the testimony of Veader and Ingram warrant only brief discussion. First, we agree with the state that the defendant‘s claim that the trial court improperly granted what was in essence an oral motion in limine in violation of
Second, to the extent the defendant‘s brief addresses the trial court‘s evidentiary rulings, it is largely inadequate. Although the defendant cites and quotes numerous authorities on the topics of relevance, hearsay, and the residual exception of
Insofar as the defendant‘s brief adequately addresses the trial court‘s
Finally, because the defendant has failed to establish that these evidentiary rulings by the trial court on the basis of hearsay and relevance were improper, he cannot establish that they deprived him of his sixth amendment right to present a defense, which is an unpreserved claim that he raises pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant‘s version of the facts as well as the prosecution‘s to the jury so that it may decide where the truth lies. . . .
“A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be apрlied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . Thus, our law is clear that a defendant may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant‘s right is not violated.” (Internal quotation marks omitted.) State v. Tutson, 278 Conn. 715, 748, 899 A.2d 598 (2006). Accordingly, because the defendant has failed to establish that the trial court improperly excluded the testimony of Veader and Ingram, he similarly cannot
establish that the exclusion violated his right to present a defense, and his claim fails under the third prong of Golding. See, e.g., State v. Crespo, 303 Conn. 589, 614, 35 A.3d 243 (2012); State v. Davis, 298 Conn. 1, 10, 1 A.3d 76 (2010); State v. Tutson, supra, 750-51.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER, ZARELLA, McDONALD and VERTEFEUILLE, Js., concurred.
Notes
The prosecutor followed up by asking: ‘‘Well, Doctor, you reached your opinion without knowing that less than a month before this murder, [the defendant] was in a psychiatric hospital because he was threatening to kill [his girlfriend] O’Connor; isn’t that true?’’
After Feuerstein explained that he was aware that the defendant was in the hospital, but not necessarily of the details of that threat, the prosecutor then asked: ‘‘And you reached your opinion without knowing that he was waving a knife around in front of his friends threatening to stab somebody [100] times shortly before he killed . . . Olivera?’’ The trial court sustained the defendant’s objection to that question, leading to a long colloquy outside the presence of the jury, and a subsequent instruction to the jury to disregard that question and that there was no evidence of such a threat.
“Second, the issue of reasonableness of the defendant‘s actions is a question for you, the jury, to determine. Any questions and answers during the state‘s cross-examination related to the issue of the reasonableness of the defendant‘s action you cannot consider in any way and those questions and answers have been stricken from the record.
“Finally, the evidence that you can consider are the responses of the witnesses. The questions that arе asked are not evidence. It‘s the responses that are the evidence and the full exhibits that you will have to consider during your deliberation. Questions, arguments are not evidence. The evidence is the answers to the questions that are posited by the attorneys.”