91 Conn. App. 227 | Conn. App. Ct. | 2005
Opinion
The defendant, Richard Serrano, appeals from the judgment of conviction, rendered after a juiy trial, of attempt to commit burglary in the second degree in violation of General Statutes §§ 53a-49 (a) (2)
The jury reasonably could have found the following facts. On the evening of November 2, 2001, the victim, Ana Yepes-Sanabria, was alone in her third floor apartment when she heard someone knocking on her door. The knocking continued for fifteen to twenty minutes. During that time, Sanabria neither answered the door nor responded orally to the knocking. Only after she saw the doorknob being turned back and forth did Sana-bria call the police. While she was on the telephone with the police, Sanabria saw a fork come past the door lock striker. Although there was some uncertainty as
During that time, Sanabria’s neighbor, Rudy Flores, who was in the second floor hallway, saw the defendant run down the stairs. When police officers arrived shortly thereafter, Sanabria described the events that had taken place but did not go to the police station at that time or view any photographs of suspects. Flores, however, went to the police station and identified the defendant from an array of photographs as the individual whom he saw run down the stairs. On March 18, 2002, while Sanabria was at the police station to inquire about two previous burglaries of her apartment, she agreed to view an array of photographs of suspects relating to the most recent incident. It was at that time that Sanabria identified the defendant as the individual who was standing outside her apartment with the fork on the night of the incident.
At trial, both Sanabria and Flores again identified the defendant as the individual who was outside Sanabria’s door and later seen running down the stairs of the apartment building. The defendant did not testify or call any witnesses but conceded that he was in the apartment building on the night of the incident. The jury found the defendant guilty of attempt to commit
I
The defendant’s first claim on appeal is that his due process right to a fair trial was violated as a result of several instances of prosecutorial misconduct. As the defendant did not object to the majority of those instances, he seeks review of the unpreserved claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree that the prosecutor engaged in two instances of misconduct. We conclude, however, that the misconduct was not so severe as to deprive the defendant of a fair trial.
Unpreserved claims of prosecutorial misconduct must be reviewed by applying the factors set out in State v. Williams, 204 Conn. 523, 540, 529 A. 2d 653 (1987) and, therefore, Golding review is unnecessary. State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). “[I]n analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question . . . .” (Internal quotation marks omitted.) Id., 572.
A
The defendant’s claims of prosecutorial misconduct fall into three categories of proscribed conduct: (1) improper appeal to the emotions and fears of the jury; (2) improper expression of the prosecutor’s personal opinion; and (3) improper introduction of facts that were not in evidence. Although the defendant also claims that the prosecutor committed misconduct by asking leading questions during direct examination, we decline to treat an evidentiary claim as a distinct category of prosecutorial misconduct.
1
The defendant claims that the prosecutor appealed to the emotions and fears of the jurors during closing
It is well settled that “[a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state’s case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. David P., 70 Conn. App. 462, 475, 800 A.2d 541, cert. denied, 262 Conn. 907, 810 A.2d 275 (2002). Nevertheless, “[w]hen 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.” (Internal quotation marks omitted.) State v. John L., 85 Conn. App. 291, 296, 856 A.2d 1032, cert. denied, 272 Conn. 903, 863 A.2d 695 (2004).
The prosecutor implored the jurors to consider the evidence and to use their common sense and experience when assessing the credibility of the witness. Neverthe
2
The defendant claims that the prosecutor improperly expressed his personal opinion throughout the course of the trial regarding (1) the credibility of the state’s two key witnesses, (2) the proper verdict, (3) defense counsel’s representation of the defendant and (4) the state’s burden of proof. We will review in turn each claimed instance of improper expression of the prosecutor’s personal opinion.
a
The defendant claims that the prosecutor improperly expressed his personal opinion regarding the credibility of the state’s two key witnesses during closing arguments when he suggested that conflicting statements by those witnesses concerned only “small details” and should not impact the jury’s assessment of the witnesses’ credibility.
At trial, there were minor discrepancies in the testimony given by the two key witnesses. The prosecutor merely was marshaling the evidence for the jury to consider when assessing the credibility of the witnesses. In doing so, he neither personally guaranteed the witnesses’ credibility nor indicated that he had knowledge outside the record about their credibility. His comments, therefore, were not improper.
b
The defendant next claims that the prosecutor improperly expressed his personal opinion regarding the proper verdict when he explained to the jury that the facts of the case warranted a “normal verdict” of guilty and that the fact that one of the witnesses, a police officer, testified that he had never heard of any
“The prosecutor may not express his own 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.) State v. Singh, 259 Conn. 693, 713, 793 A.2d 226 (2002).
It is clear that the prosecutor was not expressing his personal opinion but, rather, was trying to impress upon the jury that the defendant’s guilt could be inferred from the strength of the evidence presented. “It 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 . . . . ” (Internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 465, 832 A. 2d 626 (2003). The prosecutor’s comments, therefore, were not improper.
c
The defendant next claims that in three separate instances, the prosecutor improperly expressed his personal opinion when referring to defense counsel's representation of the defendant as improper. In the first instance, while arguing the merits of his case during
“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. . . . Furthermore, [t]he prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel. . . . There is a distinction between argument that disparages the integrity or role of defense counsel and argument that disparages a theory of defense.” (Citation omitted; internal quotation marks omitted.) State v. Orellana, 89 Conn. App. 71, 101, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). In Orellana, we held that a prosecutor’s reference to the argument of the defendant’s attorney as “ ‘smoke and mirrors’ .... was improper because it implied, to whatever degree, that the defendant’s attorney had not based his argument on fact or reason, but
In the present case, the court overruled the prosecutor’s objections in which he suggested that defense counsel was attempting to “trick” the court and stated that defense counsel was making improper arguments. After reviewing the entire transcript, we are satisfied that neither comment constituted misconduct. Nonetheless, the prosecutor’s comment regarding defense counsel’s argument as “smoke and mirrors” clearly was improper.
d
The defendant next claims that the prosecutor improperly expressed his personal opinion regarding the state’s burden of proof when he discounted possible alternative reasons for the defendant’s presence in Sanabria’s apartment building on the night of the incident.
After careful review of the record, we are satisfied that the prosecutor merely was commenting on the evidence presented and directing the jury’s attention to the reasonable inferences to be drawn from that evidence. See State v. Thompson, supra, 266 Conn. 465. The prosecutor’s comments, therefore, were not improper.
The defendant’s final claim of misconduct is that the prosecutor improperly introduced facts that were not in evidence relating to the identification of the defendant by one of the witnesses when the prosecutor stated that the defendant had conceded to the identification by Sanabria.
“A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Internal quotation marks omitted.) State v. Williams, 81 Conn. App. 1, 13, 838 A.2d 214, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).
From our review of the record, it is clear that Flores identified the defendant as the individual whom he had seen during the incident and that the defendant later conceded that Flores had made that identification. During initial closing argument, the prosecutor made reference to the identification by Flores, albeit not in the most articulate manner, when he stated that the defendant had conceded to the identification. By doing so, the prosecutor was referring to facts that were in evidence, and his comments, therefore, were not improper.
B
Having identified two instances of prosecutorial misconduct, we must now conduct the second step of our two part analysis by applying the six Williams factors
As we begin our analysis, we are mindful of the general principles that guide the next step of our inquiry. “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct 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 misconduct] we must view the prosecutor’s comments in the context of the entire trial.” (Internal quotation marks omitted.) State v. Waden, 84 Conn. App. 147, 158, 852 A.2d 817, cert. denied, 271 Conn. 916, 859 A.2d 574 (2004).
The two isolated instances of prosecutorial misconduct identified by this court, pursuant to our analysis of the six Williams factors, neither affected the integrity of the trial nor deprived the defendant of his due process right to a fair trial. The prosecutor’s improper comments made during closing arguments regarding the role of defense counsel and the prosecutor’s improper appeal to the emotions and fears of the jury did not distract from the critical issues in the case. The defendant’s presence in the apartment building on the night of the incident was undisputed, and the circumstantial evidence supported the state’s theory that the defendant had the necessary intent to commit the crime of attempt to commit burglary in the second degree. Moreover, defense counsel did not raise any objections during the prosecutor’s closing or rebuttal arguments and failed to seek curative measures from the court. Although a failure to raise any objections does not limit our review, “[d]efense counsel’s objection or lack thereof allows an inference that counsel did not think the remarks were severe.” State v. Santiago, 269 Conn. 726, 759,
II
The defendant’s second claim on appeal is that the evidence adduced at trial was insufficient to sustain his conviction. To convict the defendant of attempt to commit burglary in the second degree in violation of §§ 53a-49 (a) (2) and 53a-102, the state had to prove beyond a reasonable doubt that the defendant attempted unlawfully to enter Sanabria’s apartment at night with the intent to commit a crime therein. See General Statutes §§ 53a-49 (a) (2) and 53a-102. The defendant argues that the facts do not support a finding that there was an attempted “surreptitious entry” into Sanabria’s apartment. We disagree.
“The appellate standard of review of sufficiency of the evidence claims is well established. 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 juiy reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .
“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a
“We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . . We are content to rely on the [jury’s] good sense and judgment.” (Internal quotation marks omitted.) State v. Weisenberg, 79 Conn. App. 657, 662, 830 A.2d 795, cert. denied, 266 Conn. 932, 837 A.2d 806 (2003).
“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Citation omitted; internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 656, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).
On the basis of the evidence presented and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the defendant had the necessary intent to enter Sanabria’s apartment to commit a crime therein. The record shows that Sanabria was in her apartment at the relevant time when she saw a fork
Viewing the evidence in a light most favorable to sustaining the verdict, we conclude that the jury logically could infer from the evidence presented at trial that the defendant attempted to break into Sanabria’s apartment at night to commit a crime therein, which supports the conviction of attempt to commit burglary in the second degree, as found by the jury.
Ill
The defendant’s final claim on appeal is that the court failed to instruct the jury as to (1) all of the elements of the crime and (2) the specific crime of burglary.
“[U]nder . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, [i]t is reasonably possible that the jury was misled. ... [A] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Esposito, 81 Conn. App. 189, 192-93, 838 A.2d 1044, cert. denied, 268 Conn. 909, 845 A.2d 413 (2004).
After careful review of the charge in its entirety, we are satisfied that it was not reasonably possible that the jury was misled by the court’s instruction. Regardless of the fact that the court prefaced its instruction on the elements of burglary by defining the crime as “attempted burglary,” the court articulated and correctly charged on each essential element of the offense
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course ol' conduct planned to culminate in his commission of the crime.”
General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when such person (1) enters or remains unlawfully in a dwelling at night with intent to commit a crime therein, or (2) enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.”
Although Sanabria’s original statement to police officers was that she opened the door, she testified at trial that the door was forced open by the defendant.
The defendant’s claim that the prosecutor committed misconduct by asking improper leading questions on direct examination is without merit. Our review of the record disclosed that the prosecutor, on a number of occasions, asked leading questions. Defense counsel, however, objected to those questions, and the objections were sustained by the court. Moreover, the court frequently admonished the prosecutor regarding leading questions. The defendant has provided no authority for his proposition that by asking leading questions on direct examination, a prosecutor commits misconduct.
During closing argument, the prosecutor made the following statements: “Think, ladies and gentlemen of the jury, how do you characterize your home? This happened in her home. It’s a place, using your common sense, it’s the most sacred place to all of you. Her husband wasn’t home. She’s twenty-two years old. How do you think she was feeling? Put yourself in her shoes for just a moment and ask yourself what was going though her mind when she heard [knocking] at the door. . . . Think about how that feels when you’re in her shoes, sitting on a couch with a phone in hand, without your husband present, twenty-two years old, with two previous burglaries. How terrified would you be? How frightened would you be? How disoriented would you be in terms of your mind — ”
During initial closing argument, the prosecutor made the following statements: “Whether a contradiction is an innocent lapse of memory or an intentional falsehood or only a small detail, credibility of witnesses. Ask yourself, how many small details were they probably mistaken about? Probably a bunch. What hand people were holding, if there were noises.
“Rudy was asked if there were noises coming from upstairs. Who pays attention when they’re on the phone to what’s going on above you or when you’re talking to your mom or whoever is calling? Who pays attention to that stuff? And who remembers that ten months later? Small details.
“The judge will tell you that you can weigh that and give the person credibility, whether it was a small detail or was it an intentional falsehood. Ask yourself this: Did these people get up here and give any intentional falsehoods, or did this incident really happen? Ladies and gentlemen, you know what happened. You heard the testimony.”
During his rebuttal argument, the prosecutor made the following statements. “[Defense counsel] had said something about a characterization of time. [The victim] said fifteen to twenty minutes of knocking at the door, and she wasn’t thinking clearly. She also testified that it took [the defendant] one to two minutes to run out of the third floor building. That was — her characterization of time is not relevant here. It isn’t relevant. Use your common sense.
During rebuttal, the prosecutor made the folio-wing statements. “I’ll leave you with this, and the judge will read this to you, and he couldn’t explain it and that’s why the verdict of guilty is a normal verdict.” Later in his rebuttal, the prosecutor stated that the defendant had opportunity and added the following comments. “It’s the most compelling evidence that he could not talk about at all in which the verdict of guilty must be rendered.”
The prosecution made the following statements during initial closing argument. “The one thing that [defense counsel] could not explain to you, and the judge will explain to you, is [the defendant’s] flight, is his flight. He couldn’t explain that to you. He couldn’t — he didn’t have anything to say during his argument about flight. Did you notice that? He talked the whole time about — let’s talk about this. Fingerprints were taken, seal off the scene, no physical evidence, no fork recovered. Ladies and gentlemen, it’s smoke and mirrors.”
The prosecutor made the following statements during his objection to defense counsel’s cross-examination of the witnesses, police officers Brian Cronin and Lawrence Ferraro. “If [defense counsel] wants to make that argument, he knows he can only malee that outside the presence of the jury, Your Honor. I’d ask that you . . . sustain the state’s objection that that is hearsay. . . .
“Objection. He’s referring to something that — he’s tricking the — Judge, I’m objecting. He's referring to a — a strike plate and a striker are two different things.”
After discounting several alternative reasons to explain the defendant’s presence at the apartment building, the prosecutor made the following statement. “What was he there to do? Not there to get out of the weather, not there to get a place to sleep, not there to sexually assault or assault. He was there to steal. That’s it. The intent to commit a crime therein. He was there to steal. Bottom line. Why else was he there?”
The prosecutor made the following statement. “Rudy Flores testified that he saw him. Made a 100 percent identification of him. They conceded that. . . . [Defense counsel] conceded that there was a 100 percent identification that his client made.” Once again referring to the testimony submitted by Flores, the prosecutor stated that the identification, “at this point, based on this evidence, is uncontroverted, and the defense even conceded it with the witness.”
When the court charged the jury, it referred to the crime of “attempted burglary” rather than “burglary.” The relevant portion of the court’s charge was as follows: “A person is guilty of attempted burglary in the second degree when such person — when such person unlawfully enters or attempts to unlawfully enter a dwelling at night with intent to commit a crime therein. For you to determine the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt.
“One, that the defendant knowingly and unlawfully attempted entry to the premises; two, that such premises constituted a dwelling; three, that the unlawful attempted entry was effected or occurred with the defendant’s intent to commit a crime in the dwelling; and four, that this was effected or occurred at night.”
The defendant’s claim that the charge was defective because it did not define the crime that he intended to commit is without merit. See State v. Zayas, 195 Conn. 611, 617, 490 A.2d 68 (1985).
