47 Conn. App. 401 | Conn. App. Ct. | 1997
Lead Opinion
Opinion
The defendant appeals from the judgments of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, carrying a dangerous weapon without a permit in violation of General Statutes § 53-206 (a), and threatening in violation of General
The jury reasonably could have found the facts that follow. In November, 1994, the defendant lived in an apartment with his girlfriend, Lisa Listorti, her infant daughter and her mother. The defendant was then sixteen years old and had been living with Listorti for approximately three years.
On November 8, 1994, the defendant was at home with Listorti, drinking liquor and smoking crack cocaine and marijuana. The defendant had had two violent arguments with Listorti that day. Both times, the police were called and came to the apartment. During the second argument, the defendant became violent, hit Listorti, waved a knife in her face and threatened to kill her.
When the police arrived after the second fight between the defendant and Listorti, the defendant ran
After some discussion between the officers and the defendant, the defendant agreed to talk to Magoveny and the officer climbed onto the roof. McLane could not see the defendant or Magoveny or hear their conversation from his position on the fire escape. When Magoveny got onto the roof, he saw that the defendant was holding a large kitchen knife. As Magoveny continued to talk to the defendant, the defendant became agitated, began to growl and snarl, and raised the knife above his shoulders in a striking position. The defendant then threatened to kill Magoveny and began to walk quickly toward the officer, holding the knife in a striking position. Magoveny fired two shots from his gun at the defendant, hitting him in the hip and left arm. The defendant fell onto the roof. As Magoveny bent down to assist the defendant, the defendant continued to growl and attempted to thrust the knife at Magoveny. After a brief struggle, Magoveny fired a third shot into the defendant’s chest. The defendant then dropped the knife onto the roof. Magoveny picked up the defendant and carried him to the edge of the roof where he was lowered to a waiting ambulance.
There are many Connecticut cases defining tihe elements of an attempt charge, none of which indicates any requisite prior planning. See State v. Gonzalez, 222 Conn. 718, 725-26, 609 A.2d 1003 (1992); State v. Sharpe, 195 Conn. 651, 655, 491 A.2d 345 (1985); State v. Russell, 29 Conn. App. 59, 66, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992); State v. Taft, 25 Conn.
In the only Connecticut case of which we are aware in which the possibility that there is an element of prior planning in the attempt statute is discussed; State v. Gonzalez, supra, 222 Conn. 725-26; it was held that the trial court had improperly assumed that some prior plan or premeditation was necessary for criminal liability under § 53a-49 (a) (2). In that case, the trial court had informed the jury that subsection (a) (2) of the attempt statute did not apply because there was no plan or lying in wait leading up to the encounter between the defendant and the victim.
The jury in this case reasonably could have found that the defendant raised the knife in a menacing manner and aimed the knife toward Magoveny, and that the defendant’s act of advancing toward Magoveny holding a large knife in such a manner and driving the knife toward Magoveny was a substantial step in a course of conduct that was planned to culminate in the murder of Magoveny. We conclude that there is no support in the language of the statute or in the case law interpreting it for the defendant’s proposition that to be guilty of attempt pursuant to § 53a-49, the state would have to prove that he planned to murder Magoveny prior to performing acts that constitute a substantial step toward the murder. We hold, therefore, that the evidence was sufficient to support the jury’s conviction of the defendant of attempted murder.
The defendant did not object to the prosecutor’s remarks during the prosecutor’s rebuttal argument but did, immediately after the argument, and outside the presence of the jury, ask the court for permission to address the jury to respond to the quoted remarks. The court denied the request. Even if that request were insufficient for the preservation of the defendant’s claim,
In Golding, our Supreme Court clarified the standard for appellate review of unpreserved constitutional
The defendant’s claim is reviewable because the claim implicates the defendant’s fundamental constitutional right to testily at trial and there is a record sufficient for review. “A record is not inadequate for Golding purposes because the trial court has not reached a conclusion of law if the record contains the factual predicates for making such a determination.” State v. Torres, 230 Conn. 372, 378-79, 645 A.2d 529 (1994). Here, the exact words of the argument are known and those words implicate the defendant’s constitutional right to testily in his own behalf.
We next turn to the third prong of Golding, which requires that a defendant, in order to prevail, must show that the constitutional violation clearly exists and deprived the defendant of a fair trial. Before beginning this discussion, we emphasize that this case is not about a comment of a prosecutor that relates to the credibility
“The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ Faretta v. California, 422 U.S. 806, 819 n.15 [95 S. Ct. 2525, 45 L. Ed. 2d 562] (1975). The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony .... The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call‘witnesses in his favor,’. . . Washington v. Texas, 388 U.S. 14, 17-19 [87 S. Ct. 1920, 18 L. Ed. 2d 1019] (1967). Logically included . . . is aright to testify himself. . . . The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Rock v. Arkansas, 483 U.S. 44, 51-52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); see, e.g., Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971) (“[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so”). A defendant’s right to testify is also protected by his rights to a fair trial, to due process, to present a defense, and to be free from compelled testimony under article XVII of the amendments to the Connecticut constitution and under article first, § 8, of the Connecticut constitution.
We conclude that this case is similar to and governed by State v. Cassidy, supra, 236 Conn. 120, in which the court held that the defendant’s constitutional right to be present throughout his trial was violated by the prosecutor’s closing argument.
The Cassidy court acknowledged, as is true in the present case, that the objectionable comments by the prosecutor were relatively brief. The court further acknowledged that “we have in the past rejected due process claims predicated on a single questionable prosecutorial statement.” (Internal quotation marks omitted.) State v. Cassidy, supra, 236 Conn. 130-31. The
The Cassidy court also acknowledged the fact that, in choosing to testify, the defendant put his credibility at issue, thereby subjecting himself to critical cross-examination. Accordingly, the court noted that the prosecutor would have been free to challenge the defendant’s version of the facts and to argue that the defendant had tailored his testimony to fit the state’s case, provided that such an argument was “linked solely to the evidence and not, either directly or indirectly, to the defendant’s presence at trial [i.e., his exercise of a constitutional right].” State v. Cassidy, supra, 236 Conn. 128 n.17.
The principles of Cassidy control this case, by which we are bound as an intermediate appellate court. In the present case, the prosecutor argued to the jury that the defendant exercised his constitutional right to testify because he and his attorney believed that the state’s case was so “strong, and so convincing to you, that he felt obligated to get up there and . . . give you a story . . . [a]nd if he thought . . . that the state’s evidence was too weak in this case, why did he decide to get up here and testify?” The state essentially argued, therefore, that the defendant exercised his constitutional right to testify at his trial because the state’s evidence
The prosecutor in this case, as a consequence of his remarks, invited the jury to draw an adverse inference from the very fact of the defendant’s decision to exercise his fundamental right to testify in his own behalf. The remarks were not objectionable because they addressed the content or credibility of the testimony, but because, as was true in Cassidy, the comments directly implicated an important constitutional right of the defendant. Only he and the officer were on the roof during the encounter, and the defendant’s version of the encounter related to the critical issue to be determined in the case, namely, whether the defendant intentionally did or omitted to do anything “under the circumstances as he believe[d] them to be, [was] an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” (Emphasis added.) General Statutes § 53a-49 (a) (2). The statements in the present case were not merely comments on the credibility of the defendant’s testimony, but rather were statements that directly linked his decision to testify with his guilt. Such comments are impermissible, and we hold that they were a denial of the defendant’s due process rights.
Finally, the state argues in its brief that the prosecutor’s arguments in this case were permissible because unlike in Cassidy, the prosecutor’s remarks were made during his rebuttal argument in response to the defen
This is not a case where the prosecutor was responding to the defendant’s own argument in his closing statement that directly implicated the defendant’s constitutional right to testify, such as, for example, an argument by the defendant that the defendant must have been telling the truth or he would not have testified. Cf. id., 33. Instead, the defendant’s closing argument merely urged the jury to believe the defendant’s testimony. Although it is true that the prosecution may comment on the veracity of a defendant, it may not constitutionally make a negative comment on the defendant’s very act of taking the stand.
A defendant’s decision to exercise his right to testify is analogous to a defendant’s decision to exercise his fifth amendment right not to testify. “It is well settled that comment by the prosecuting attorney or the trial court on the defendant’s failure to testify is prohibited
The United States Court of Appeals for the Second Circuit has extended the holding in Griffin to prohibit prosecutorial comment on a defendant’s decision to testify. In a 1997 case, Agard v. Portuondo, supra, 117 F.3d 712, the Second Circuit relied on Griffin to hold that “commentary which chills the defendant’s right to testify on his own behalf is unconstitutional.” Although the Connecticut Supreme Court has not yet had an opportunity to comment on Agard, the Agard case is consistent with the principles of Cassidy.
The Agard court held that closing arguments that invited the jury to infer that the defendant exercised his constitutional right to be present in the courtroom during his trial in order to doctor his testimony violated the defendant’s “right to testify on his own behalf and correspondingly the Fifth, Sixth and Fourteenth Amendments.” Id. Similarly, in United States v. Freeman, 514 F.2d 1314, 1318 (D.C. Cir. 1975), the court relied on an analogy to Griffin and held that “the prosecutor’s reference [to the defendant’s decision to take the stand as indicative of his guilt] impinged impermissibly on his right to take the stand . . . .’’In holding that the prosecutor’s comments constituted error, the court stated that the defendant’s decision to take the stand had “no rational bearing” either on the defendant’s guilt
Having determined that the closing remarks by the prosecutor were improper, we next, in accord with the fourth prong of Golding, consider whether the state has proved beyond a reasonable doubt that the error was harmless. Viewing the prosecutor’s comments in the context of the entire trial, we conclude that the state has failed to meet its burden.
The court in Cassidy held that the prosecutor’s impermissible remarks regarding the defendant’s presence in the courtroom during the trial were harmful constitutional error even though “the prosecutor’s objectionable comments were relatively brief and not made in bad faith.” State v. Cassidy, supra, 236 Conn. 130. In concluding that the statements were not harmless error, the court relied on the fact that the defendant and the victim were the only witnesses with firsthand knowledge of the crime and, thus, credibility was unquestionably a central issue at trial. Id., 129-30. Similarly, in the present case, the defendant and the victim, Magoveny, were the only witnesses with firsthand knowledge of the events pertinent to the attempted murder charge. The critical question to be resolved by the jury, therefore, was which of the two eyewitnesses was telling the truth.
The prosecutor’s argument, which served to link the discrediting of the defendant’s testimony with a negative comment on the very fact that the defendant did testify, bore on the critical issue to be resolved by the jury. Given the particular facts of this case, we are not persuaded beyond a reasonable doubt that the jury was not influenced adversely by the prosecutor’s improper closing argument. The remarks were not harmless beyond a reasonable doubt and, accordingly, the defendant is entitled to a new trial on the charge of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) and 53a-54a.
The judgment is reversed only as to the conviction of attempt to commit murder and the case is remanded for a new trial on that charge.
In this opinion LAVERY, J., concurred.
The threatening charge concerns Lisa Listorti, a victim different from the victim involved in the attempt to commit murder charge. No claims of impropriety are alleged on appeal as to the crime of threatening or carrying a dangerous weapon.
On the basis of the particular comments of the prosecutor, we conclude that the constitutional right of the defendant to be present at trial is not involved in this case. Also, the defendant’s constitutional right to confront the witnesses against him is not involved in this case.
In Gonzalez, the defendant was charged with attempted murder as a result of an encounter between the defendant and the victim on a public road. The defendant got out of his car and shot the victim after the victim allegedly had cut him off. State v. Gonzalez, supra, 222 Conn. 725. The defendant and the victim had never met prior to the encounter. Id.
The defendant also claims that the court’s instructions to the jury concerning the planning element of an attempt charge and concerning the
The defendant’s request was made at a time when the court could have cured any impropriety because the charge had not yet been given and the jury had not yet begun its deliberations. See State v. Haase, 243 Conn. 324, 332, 702 A.2d 1187 (1997).
Article first, §8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel .... No person shall be . . . deprived of . . . liberty . . . without due process of law . . . .”
State v. Cassidy, supra, 236 Conn. 128 n. 16, determined that the prosecutor’s argument “also burdened the defendant’s exercise of his constitutional right to testify in his own behalf . . . [but concluded that] [b]ecause the defendant has not raised this claim . . . we do not base our decision on it.”
In Cassidy, the prosecutor made the following statement: “Now also consider, you notice that the witnesses come in and out and there’s no
Our legislature has statutorily recognized this right by enacting General Statutes § 54-84, which provides: “(a) Any person on trial for a crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
“(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”
The defendant and Magoveny disagreed on several critical facts in this case. Specifically, the two differed on the issues of when Magoveny unholstered his weapon, in which hand the defendant carried the knife and whether the defendant dropped the knife before or after Magoveny fired the third shot into the defendant’s chest.
The defendant’s convictions of violating §§ 53-206 (a) and 53a-62 remain undisturbed.
Dissenting Opinion
dissenting. I must respectfully disagree with the majority opinion that statements made by the prosecutor in his rebuttal closing argument to the jury impermissibly burdened the defendant’s constitutional right to testify in his own behalf. The defendant did not object to any of the comments made by the prosecutor and has not satisfied the Evans-Golding test to allow this court to review his unpreserved claim. Furthermore, the defendant’s claim is distinguishable from that decided by our Supreme Court in State v. Cassidy, 236 Conn. 112, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996).
The constitutional right at issue in Cassidy was the defendant’s right to be present throughout the trial. In Cassidy, the court relied on several United States Supreme Court decisions to establish that the right of a defendant to be physically present in the courtroom is fundamental. See, e.g., Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965) (right to confrontation fundamental to fair trial under federal constitution); Coy v. Iowa, 487 U.S. 1012, 1018-19, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), quoting Lee v. Illinois, 476 U.S. 530, 540, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986) (right to confront one’s accusers so deeply rooted in “human feelings of what is necessary for fairness [that] the right of confrontation ‘contributes to the establishment of a system of criminal justice in which
The defendant also argues that his claim is reviewable under the second exceptional circumstance of Evans, as refined by State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
“In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel 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. . . . [W]e must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) State v. Villanueva, 44 Conn. App. 457, 461-62, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997), quoting State v. Hansen, 39 Conn. App. 384, 395, 666 A.2d 421, cert. denied, 235 Conn 928, 667 A.2d 554 (1995).
In this case, the prosecutor’s comments were not so egregious as to deprive the defendant of a fair trial, and were made in response to defense counsel’s final argument, much of which referred to the defendant’s sincerity, credibility and willingness to testily, and to the weaknesses in the state’s case.
Even if I were to review this claim, however, I would conclude that the defendant has failed to demonstrate that the prosecutor’s closing argument impermissibly burdened his constitutional rights to be present throughout the trial or to testify in his own behalf. The defendant claims that the prosecutor argued that the defendant’s act of testifying was really an act of misconduct that showed consciousness of guilt and asked the jury to draw an adverse inference from that act.
During closing arguments, defense counsel challenged the credibility of Officer John Magoveny’s testimony and argued that the state’s case was politically motivated. In response, the prosecutor referred to the fact that the defendant felt compelled to testify in his own defense. These comments may be distinguished from those held to be improper in Cassidy. In that case, the prosecutor argued that the defendant had “doctor[ed] up” his testimony as a result of having been present in the courtroom during the trial. Our Supreme
Here, in response to comments by defense counsel that characterized Magoveny’s testimony as unworthy of belief, the prosecutor referred to the fact that the defendant testified in order to refute Magoveny’s testimony. Those comments did not ask the jury to infer guilt because the defendant testified, but merely pointed out the fact that the case revolved around the credibility of the defendant and Magoveny. “It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination.” State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986). Moreover, rather than ask the jury to draw an adverse inference from the defendant’s assertion of his right to testify, the prosecutor specifically stated that the defendant had a right to testify. I would conclude that the prosecutor’s comments were not an unconstitutional infringement of the defendant’s right to testify in his own behalf.
The defendant has also failed to establish that the prosecutor’s comments violated his right to be present throughout the trial. The prosecutor, during his rebuttal closing argument to the jury, made the following statement: “Obviously . . . [the defendant] heard evidence during the course of the state’s case that he felt was . . . strong, and so convincing to you, that he felt obligated to get up there and testify and give you a story. ...” This statement merely pointed out the obvious fact that the defendant chose to testify after listening to the evidence presented by the state. Furthermore, this statement is distinguishable from the statement made in Cassidy.
I would affirm the judgment of the trial court and, therefore, respectfully dissent.
In Evans, the court stated: “There appear, then, to exist only two situations that may constitute ‘exceptional circumstances’ such that newly raised claims can and will be considered by this court. The first is . . . where a new constitutional right not readily foreseeable has arisen between the time of trial and appeal. . . . The second ‘exceptional circumstance’ may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial. ” (Citation omitted.) State v. Evans, supra, 165 Conn. 70.
In addition to the United States Supreme Court cases cited by the court in Cassidy, several Connecticut cases have also considered the defendant’s right to be present at trial and to be confronted with the witnesses against him. See, e.g., State v. Bonello, 210 Conn. 51, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989); State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).
In Colding, the court held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court . . . has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument. . . .” State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).
In Ms rebuttal closing argument, the prosecutor stated: “[Y]ou heard repeated references this afternoon [to the fact] that Mr. Shinn got up and testified. That is Ms right, if he wants to do that, he has the perfect right to do that. That is up to him. He also has a right not to testify.”