Opinion
No. CR97-009 80 74 S
May 21, 2001
MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION FOR NEW TRIAL
On March 21, 2001, the defendant, Randall Saunders, was found guilty after a jury trial of the charge of Reckless Manslaughter in the First Degree in violation of General Statutes § 53a-55a(3). On April 4, 2001, the defendant timely filed a motion for new trial. The defendant requests that a new trial be granted because of prosecutorial misconduct during the trial, in particular because of certain comments made by the state during closing argument. The state opposes the motion on the basis that the defendant's due process rights were not infringed.
The court granted the defendant a ten day extension to file such motion; therefore, the defendant complied with the requirement of Practice Book § 42-52 that motion for new trial must be filed five days after the verdict.
In his motion for new trial, the defendant references particular comments made by the state during opening and closing arguments. For clarity's sake, the court calls all summations closing arguments and will specifically reference initial summation by the state as the state's closing argument, the summation given by defense counsel as defense's closing argument and the rebuttal summation given by the state as the state's rebuttal argument.
The court has reviewed the transcripts of closing argument, the memoranda filed by both sides and, on April 25, 2001, heard oral argument on the instant motion. The following constitutes the court's finding and memorandum of decision.
DISCUSSION
Practice Book § 42-53 provides for the granting of a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error." (Internal quotation marks omitted.) State v. Roberson, 62 Conn. App. 422, 423 (2001). "A motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds." State v. Asherman, 193 Conn. 695, 735, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985). The type of error that will justify a new trial is one which reasonably could have affected the trial result or outcome of the proceedings; see State v. Ortiz, 198 Conn. 220, 225-26, 502 A.2d 400 (1985); or one which resulted in an injustice or deprived the defendant of a fair trial. See State v. Fernandez, 198 Conn. 1, 17, 501 A.2d 1195 (1985). The determination as to whether the state's comments amounted to misconduct requiring a new trial requires evaluation under six separate factors. See State v. Rivera, supra, 61 Conn. App. 770. The court must examine: "(1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state's case." (Internal quotation marks omitted.) Id.
Practice Book § 42-53(a) provides in pertinent part that: "Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. Unless the defendant's noncompliance with these rules or with other requirements of law bars his or her asserting the error, the judicial authority shall grant the motion: (1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or (2) For any other error which the defendant can establish was materially injurious to him or her."
The defendant claims that the misconduct occurred through the state's interjection of its own opinion; use of facts that were not in evidence; attempts to appeal to the jury's sympathy and passion by mischaracterization of the defendant's claims; references to the defendant's failure to testify; and impermissible commentary on the defendant's character. This court does not agree and will address each claim in turn.
A
"Prosecutorial misconduct may . . . occur in the course of closing argument. . . . Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. . . . We do not focus atone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct." (Citation omitted; internal quotation marks omitted.) State v. Rivera, 61 Conn. App. 763, 769, 765 A.2d 1240 (2001). "To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice." State v. Alexander, 254 Conn. 290, 303, 755 A.2d 868 (2000).
"[I]n addressing 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. Chasse, 51 Conn. App. 345, 358, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). "We do not scrutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. . . . It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted." (Citation omitted; internal quotation marks omitted.) Id., 356. The prosecutor's challenged remarks are evaluated to determine whether they "were improper, and if so, whether they caused substantial prejudice to the defendant." (Internal quotation marks omitted.) State v. Rivera, supra, 61 Conn. App. 769.
The prosecutor may not "express his opinion, directly or indirectly, as to the guilt of the defendant." State v. Williams, 204 Conn. 523, 541, 529 A.2d 653 (1987). "`[A] prosecutor should exercise restraint to avoid needless personal references, without sacrificing the vigor or effectiveness of his argument. . . .'" State v. Satchwell, 244 Conn. 547, 565-566, 710 A.2d 1348 (1998), quoting United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982).
Although some of the state's attorney's comments during final argument employed phrases such as, "I argue," "I think" and "I believe," "[i]t is not improper for the prosecutor to point out how the evidence was presented, what evidence was presented, what reasonable conclusions could or should be made by the jury and what factual inferences could be drawn by the jury from the facts found." State v. Singh, 59 Conn. App. 638, 647, 757 A.2d 1175 (2000), cert. granted, 255 Conn. 935, 767 A.2d 1214 (2001). The court finds the state's attorney improperly gave his personal opinion on numerous occasions in his closing and rebuttal arguments. While the court finds the remarks at issue troubling, ill-advised, and inartfully phrased, the record reveals that the state repeatedly prefaced many of its remarks by stating they were made "in argument" or that the state was going to "posit" a claim. Furthermore, defense counsel failed to object to any expression of personal opinion made by the state's attorney. "[I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument . . . and something must be allowed for the zeal of counsel in the heat of argument. . . . The occasional use of rhetorical devices is simply fair argument. . . . If every rhetorical remark made by counsel were ground for a reversal, we again stress that comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation. . . . For an illustration of how natural it is to use such rhetorical devices, we need look only to defense counsel's closing argument." (Citations omitted; internal quotation marks omitted.) State v. Chasse, supra, 51 Conn. App. 366.
"I think that charge [intentional manslaughter] is proven beyond a reasonable doubt, that particular charge. I'll say more about the reckless charge later. I think that's proven beyond a reasonable doubt." (State's closing, p. 3, lines 11-14.) "Believe it or not, I have to disprove self-defense, so I have to — the majority of my argument to you is going to concern why this case is not self-defense." (State's closing, p. 4, lines 3-6.) "I don't believe he [the decedent] hit her [the defendant's girlfriend] and I think the defense is being deceptive about that. He [the defendant] didn't honestly believe that Dominick [the decedent] was going to shoot him, otherwise he wouldn't have been dishonest about four guys beating him up in the bar. The defendant is using deception once again to bolster his claim of self-defense." (State's closing, p. 15, lines 15-22.) "The — The cursing which he used in his closing argument, I think, that he, perhaps, over exaggerated that for dramatic effect. He really did over exaggerate that. I think, if you recall, there was one witness during the case, Brian Bishop, who was being asked questions by [defense counsel] and he said to [him]. `Aren't you — You're really over exaggerating that, that's now how it happened?' I think [the defense counsel] was doing the same during his closing." (State's rebuttal, p. 4, lines 21-27; p. 5, lines 1-3.) "Dominick never put a gun to the defendant's throat. Dominick was unarmed. And the defense tried to pawn-off to you — I think it's a preposterous argument — that the party with the gun was the one that was in fear of his life. Shouldn't it be the other way around? Dominick fought fair and square with his fists. That's how it should be if — if there's a fight of this type. Bringing a gun to a fight of this type is absolutely wrong." (State's rebuttal, p. 20, lines 9-18.)
" I'm going to posit this claim to you: I think even the defendant knows in order for his claim of self-defense to be successful he has to have everybody here believing that Dominick was reaching for a gun. And I think he knew that when he gave his story on the night of the arrest in the booking cage. He knows himself that in order to get a good self-defense claim, he's got to get you believing that he honestly thought Dominick had a gun. He — That's an argument that I'm making. Even the defendant knows he must sell — and to sell the self-defense claim, in order for it to be successful, he must establish that Dominick was reaching for a gun. I'm arguing that the defendant didn't honestly believe he was going to be beaten to death. There is not even a — That's not his claim. His claim is he was going to be shot." (Emphasis added.) (State's closing, p. 6, lines 1-27; p. 7, lines 1-3.) " I'm arguing that this statement here is untruthful about the defendant reaching for a gun." (Emphasis added.) (State's closing, p. 9, lines 14-16.) "That's a critical point I'm going to argue to you here. If the defendant honestly believed Dominick had a gun, he would have warned him. I'm arguing to you that he did not warn him." (Emphasis added.) (State's closing, p. 9, lines 22-25.) " I'm sort of making this argument: If he didn't warn him in the bar area like he says, he probably didn't warn him in the kitchen either." (Emphasis added.) (State's closing, p. 10, lines 19-21.) "The warning is critical I think. It's an important piece of information. So I'm arguing he's being dishonest about it." (Emphasis added.) (State's closing, p. 10, lines 23-25.) " I'm arguing that if the self-defense story he's giving in the bar is untrue, then so would the self-defense claim in the kitchen be untrue." (Emphasis added.) (State's closing, p. 17, lines 2-4.) " I'm making the argument that he wasn't afraid of Dominick. . . . Dominick was a pretty big guy, but you know, I think the defendant's younger and taller." (Emphasis added.) (State's closing, p. 24, lines 1-2; 6-7.) " I'm going to argue that it's reckless to go out drinking with a gun." (Emphasis added.) (State's closing, p. 31, lines 17-18.)
"And it's clear that everybody is lying. I mean, certain people it's clear that they're lying. Why do we know it's lying, because Mr. Murray [the state's attorney] — Well first of all, Mr. Murray would of turned over a wallet to the defense if he had it. But the second person that comes up there is Charlotte Olson and what does she tell you — I mean, it's almost like a comical combination of witnesses." (Defense closing, p. 18, lines 9-17.) "If you — If you listen to Paula Keeler it took from the time she heard what, I believe, was the smashed garbage can." (Defense closing, p. 21, lines 16-18). "But the thing is doesn't it bother you because it sure bothered me." (Defense closing, p. 25, lines 12-13.) "I believe that Randy Saunders said `Stop or I'll shoot.'" (Defense closing, p. 33, lines 24-25.) "I don't buy the story. I don't buy the story that Dominick had nothing on his body. I don't buy it. And I don't buy the story how — how the cowboy hat just got mysteriously put there. I don't buy it." (Defense closing, p. 38, lines 17-21.) "I think you can easily believe Dr. Taub. . . ." (Defense closing, p. 46, line 9.) "I believe that the police simply misunderstood the significance of the autopsy report." (Defense closing, p. 48, lines 6-8.)
In his arguments, the state's attorney highlighted the evidence presented and what reasonable conclusions could be made by the jury. When read in their entirety and in the context of the entire trial; see State v. Chasse, 51 Conn. App. 356; the state's remarks overall are an expression of argument, not expression of opinion, and are not in and of themselves so prejudicial as to require a new trial. Also, in the charge to the jury immediately following final arguments, the court twice instructed the jury that such arguments were not evidence and, furthermore, that the juror's recollection of the facts, rather than that of the counsel, was controlling. Moreover, the state presented a very strong case against the defendant. Accordingly, the court finds that in the context of the entire trial, the improper remarks made by the state's attorney did not substantially prejudice the defendant to make the resulting conviction a denial of due process.
"In reaching your verdict you could — you should consider all the testimony and exhibits received into evidence. Certain things are not evidence and you may not consider them in deciding what the facts are. Arguments and statements by lawyers — it's not evidence. The lawyers are not witnesses. What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence. If the facts, as you remember them, differ from the way the lawyers have stated them, your memory of them controls." (Court's instruction, p. 6, lines 15-16; p. 7, lines 1-7.) "Summaries to you as to the facts or evidence in this case, you should weigh with only — with only — you should weigh them with your own recollection. Otherwise, — and discount them otherwise if your recollection disagrees with what they [the lawyers] have said to you." (Court's instruction, p. 10, lines 1-6.) "And I emphasize again, it is your recollection of the facts that controls. And you are the sole factual finders." (Court's instruction, p. 10, lines 8-9.)
Approximately fifteen people, including patrons and employees of the establishment where the crime occurred, the Tortilla Flats restaurant and bar, witnessed the altercation between the defendant and decedent and the ensuing actions leading up to and culminating in the shooting. These people testified at the trial and not one of them, including the defendant's girlfriend, corroborated the defendant's position that the decedent hit the defendant's girlfriend or that the defendant gave a verbal warning to the decedent before shooting. Furthermore, no witness testified that the decedent had a gun and no gun was ever recovered by the police.
B
"A prosecutor, in fulfilling his [sworn] duties, must confine [the arguments] 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." (Citations omitted; internal quotation marks omitted.) State v. Alexander, supra, 254 Conn. 306. "[A] prosecutor should not inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence." (Internal quotation marks omitted.) State v. Mills, 57 Conn. App. 202, 210, 748 A.2d 318, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000).
The defendant cites to several comments made by the state in which the defendant argues that the state is introducing a concept not based upon any evidence before the jury. The defendant particularly notes that the state in rebuttal introduced another theory as to the decedent's manner of death due to the path of the bullets. While no witnesses testified as to this theory, the state specifically commented that the medical experts were unable to state the exact positions the defendant and decedent were in relation to each other at the time of the shooting. The court finds this to be a rational inference based on facts in evidence.
"The bullets — the direction of the bullets in they're [sic] traveling; I — I don't know. If — If they're traveling downward, perhaps that suggests that Mr. Badaracco [the decedent] is falling and retreating." (State's rebuttal, p. 15, lines 24-27.)
"Miss Chapdelaine says to believe Dr. McDonough and Mr. O'Brien. Dr. McDonough and Mr. O'Brien really can't say, because the dynamics of the two bodies, what the exact position of the bodies were in relation to one another." (State's rebuttal, p. 16, lines 1-6.) See also Exhibit 78, medical report.
The defendant also argues that the state injected other extraneous matters into the case by referring to crime staging by the police and a police conspiracy. Defense counsel questioned the propriety of the conduct of the police, and the crime scene investigation, in his closing statement. The court finds that the state's comments were made in response to those made by defense counsel in his closing argument and were, therefore, invited. Also, the jury was instructed that its recollection of the evidence controlled. Furthermore, the challenged remarks constituted only a brief, isolated portion of the state's rebuttal argument and were made to make a legitimate point in response to the defense counsel's closing argument. Accordingly, as to the comments the defendant cites, the court finds the state either appropriately made comments on facts in evidence or rational inferences thereon, or responded to an invitation made by the defendant in his closing argument. Therefore, the defendant's claim is without merit.
"[F]rom the very beginning, in this case, there was a presumption of guilt. . . . [T]he police thought this was just a cut and dry case. This was [a] clear case." (Defense closing, p. 25, lines 23-26.) "Police thought this was just a guy that got shot in the back." (Defense closing, p. 25, lines 20-21.)
"Remember what Miss Joy said about the crime scene tape being what she called disgusting. Has the state's attorney, during his case, done anything to alleviate that concern of hers." (Defense closing, p. 15, lines 23-26.) "Did he [the state's attorney] ever try to establish for you that that — that scene had been altered. Did he ever try to bring out the fact that that's not the way that bar looked on Super Bowl Sunday. Did he ever try to establish through Officer Brooks that he knew that had been cleaned. And why is there — in that crime scene video, do you find it disgusting? Do you find it horrible? Do you find it offensive that this cowboy hat is sitting on the one table in that dining room next to the only bottle of beer on a Super Bowl Sunday. Who did that? Who staged that? That had to be staged. Did the state ever explain that to you?" (Defense closing, p. 16, lines 1-15.) "We know Mr. Ziolkowski brought the cowboy hat into Randy Saunders [in the kitchen following the shooting]. Why, because Mr. Murray [the state's attorney] actually proved it. And how did [he] prove it, he proved it through putting Randy's girlfriend, Patty Joy, on the stand. (Defense closing, p. 16, lines 16-21.) "Mr. Ziolkowski did bring this cowboy hat into Randy Saunders. I believe you can believe that. Then how did the hat get from the kitchen into the dining room table next to the single bottle of beer? How did it get there? Think! Let's use some common sense." (Defense closing, p. 16, lines 25-27; p. 17, lines 1-3.) "I mean, you had to sit there and say Oh God, well, the cowboy hat was in there and now the cowboy hat is in there." (Defense closing, p. 18, lines 24-26.)
"I believe that the police simply misunderstood the significance of the autopsy report. They rushed to judgment and that's why the balance of the police work in this case was not up to their usual standards. They simply believed that Mr. Badaracco had been shot in the back three times." (Defense closing, p. 48, lines 6-11.)
"There was no presumption of guilt by the police. There was no evidence of that — I don't even know if the police knew about the shots in the back. Dominick was on his back. I don't know that the police knew or there's been evidence that the police knew he was shot in the back and, therefore, they went out and concocted this case against Mr. Saunders." (State's rebuttal, p. 12, lines 7-13.)
"The crime scene. Oh, yeah, the crime scene was altered." (State's rebuttal, p. 5, lines 21-22.) "Now, it did get cleaned. It happened. . . . We weren't hiding the fact that that happened. But Mr. Field seems to be suggesting that the police are staging that crime scene. I don't — Let's — Let's think. The police get into Tortilla Flats. Dominick Badaracco's been shot. Police are all hanging around. What are we going to do. Let's stage a crime scene." (State's rebuttal, p. 6, lines 7-15.) "And another interesting point about this argument — the crime scene staging — there's really no evidence that it occurred. You have a hat on the table, who knows how it got there. Sue Bruemmer could of put it there. Anybody could of put it there. I don't know how it got there. But to draw the inference that the police staged a crime scene because the hat's on the table, it's missing evidence. You need that evidence to support that inference." (State's rebuttal, p. 6, lines 21-27; p. 7, lines 1-3.)
In response to the prosecutor's objection to defense counsel addressing the issue of motive of the defendant to shoot the decedent, the court advised the jury of the following: "Ladies and gentlemen of the jury you'll be advised that's it's your recollection of the evidence that — that counts. Counsel's arguing and he's presenting to you his position based upon what he believes the evidence is. Continue, please." (Defense closing, p. 9, lines 13-19.)
C CT Page 6001
"A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the jury's attention from [its] duty to decide the case on the evidence." (Internal quotation marks omitted.) State v. Mills, supra, 57 Conn. App. 209. "A prosecutor may, however, present arguments with logical force and vigor." State v. Singh, supra, 59 Conn. App. 648.The defendant claims that the state's attorney improperly appealed to the jury's sympathy and passion by misstating and mischaracterizing the law. Specifically, the defendant argues that as a result of the state's comments the jury was left with the impression that in order for the defendant to justify his conduct through self-defense, he must have believed that the decedent was going to shoot him. In its closing argument, the state referred to the self-defense theory that the defendant made in his written statements, videotape and personal letters, namely, that the defendant thought the decedent was reaching for a gun at the time the defendant shot him. In the defense's closing argument, defense counsel advanced an alternate theory that the defendant used deadly force because he feared the decedent was going to use deadly force against him. In its rebuttal, the state clarified what the law was as to self-defense. Also, the court instructed the jury on the law regarding self-defense.
"Deadly physical force may only be used when the actor reasonably believes that deadly physical force will be used against the actor. He can only shoot Dominick if he reasonably believes Dominick will shoot him. The defendant's belief that Dominick is going to shoot him must be a reasonable belief. It must not be irrational or unreasonable given the set of circumstances. I'll go through these in a second. The defendant's belief must be reasonable, honest and sincere. You could ask yourselves this question; this is another way to frame these legal questions: Would a reasonable person in the defendant's circumstances have reached the belief that Dominick was going to shoot him? If you were in the kitchen would you believe that Dominick was going to shoot you?" (State's closing, p. 8, lines 2-17.)
"Miss Chapdelaine was right; great bodily harm allows — the fear of great bodily harm allows one to use self-defense in this way. But remember what I said, he is saying he shot Dominick because Dominick was going to shoot him. He is not saying he shot Dominick because he was in fear of great bodily harm. You do have to take a punch before you can shoot somebody. That is the law here. I can't — If — If somebody in this room were to come up and punch me, I can't shoot him. You can't use deadly force to repel non-deadly force." (State's rebuttal, p. 17, lines 10-21.)
The defendant also claims the state introduced evidence not before the jury by making comments indicating that the defendant's claim of self-defense was innuendo and as such it was insufficient. In opposition, the state argues there is a distinction between innuendo or speculation and proper legal inference based on submitted evidence. The state may comment on a defendant's failure to support his own factual theories with witnesses. See State v. Hoeplinger, 27 Conn. App. 643, 652-53, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). The court finds the state's remarks addressed a theory suggested by defense counsel in his questioning of witnesses (regarding the possibility that the decedent had a gun and that those present at the bar removed it prior to the arrival of the police), and the state's contention that the defendant failed to support this theory with witnesses.
"And let me say this about the presence of another gun, if I can, because a lot was made of it and a lot was made of it by innuendo. I mean the defense kept asking those questions about searching and you find a — you know, searching. Could somebody have taken something from Dominick? It was all done by innuendo. No direct evidence of it. It's that weak. There is no evidence of it, that they have — it has to be done by innuendo." (State's closing, p. 19, line 27; p. 20 lines 1-8.) "And by innuendo it's trying to be suggested [by defense counsel] that somehow these people [in the bar area at the time of the shooting] are taking stuff from him [the decedent]. Dominick has no personal property on him; therefore, it must have been taken." (State's closing, p. 22, lines 1-4.)
Several of the comments the defendant refers to were made by the state in reference to evidence that was presented to the jury and the reasonable inferences that the jury could draw from it. See State v. Jeudis, 62 Conn. App. 787, 795, ___ A.2d ___ (2001). "Even if the challenged remarks were inappropriate because they were made as an appeal for sympathy, they were not egregious or part of a pattern of misconduct throughout the trial." State v. Singh, supra, 59 Conn. App. 649. Furthermore, defense counsel made statements that appealed to the jury's passions. Accordingly, the court concludes that the state's comments were not improper, and even if they were, when viewed in context of the entire trial they did not substantially prejudice the defendant's right to due process.
"I want you to think about how much time Mr. Saunders had in that kitchen. Now, [defense co-counsel] has already talked a little bit about that. But I want you to imagine that you had up to five seconds to decide whether or not you were going to live on this earth any longer." (Defense closing, p. 52, lines 21-26.)
D
"It is well settled that comment by the prosecuting attorney . . . on the defendant's failure to testify is prohibited by the fifth amendment to the United States constitution." (Internal quotation marks omitted.) State v. Satchwell, supra, 244 Conn. 570-71. "The state may, however, comment on a defendant's failure to call witnesses to contradict the factual character of the government's case . . . as well as his failure to support his own factual theories with witnesses." (Citations omitted; internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 652-53, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).
The fifth amendment to the United States constitution, which is made applicable to the states by virtue of the fourteenth amendment, provides in pertinent part: "No person shall . . . be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . ."
"Our legislature has given statutory recognition to this right by virtue of its enactment of General Statutes § 54-84. In determining whether a prosecutor's comments have encroached upon a defendant's right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? . . . Further, in applying this test, we must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury. . . . Finally, [w]e also recognize that 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." (Citations omitted; internal quotation marks omitted.) State v. Satchwell, supra, 244 Conn. 570-71. With these principles in mind, the court examines the defendant's claim.
General Statutes § 54-84 provides in pertinent part: "Testimony or silence of accused. (a) Any person on trial for crime . . . 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. . . ."
The words of the defendant were entered into evidence through the admission of his sworn statement to the police, a booking videotape and the defendant's personal letters. Both the state and the defense referred to what the defendant stated in these exhibits during their respective summations. The state properly referred to the defendant's statements in evidence during its summation and never once utilized the word "testimony" or "testify." Also, the jury was twice instructed on the defendant's right not to testify.
A fair reading of the remarks at issue leads the court to conclude that the jury would not "naturally and necessarily" have interpreted them as a substantive comment on the defendant's failure to testify. See State v. Rivera, 39 Conn. App. 96, 101, 664 A.2d 306, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995). "Rather, the jury most likely interpreted the statement[s] as a directive as to where in the evidence the defendant's arguments could be found." Id. Accordingly, the court concludes that the defendant's claim is without merit.
E
The defendant argues that the state made impermissible comments on the defendant's character. The court finds that the state's comments are not just a general commentary on the defendant's character, but were made by the state in extrapolating on its argument that the defendant was not afraid of the decedent. Furthermore, in the other comments at issue the state was attempting to present its position based upon what it believed the evidence showed about the defendant's character. Accordingly, the court concludes that these comments were not improper, and even if they were, they did not cause substantial prejudice to the defendant such as to deny his due process rights.
"Remember, he's a Lieutenant in the Marine Corps. He knows the use of deadly force. Do you think this a timid guy? Do you think this is a wallflower we're dealing with over here? `Gee, I'm real scared.'" (State's closing, p. 24, lines 16-20.)
See footnote 4.
"In the letter — one of the letters in 3/31 — And I'm going to argue that this has to do with the defendant's fear and I'm going to argue that he's — I'm arguing that he's not afraid of the Badaraccos [the decedent's family]. He does write that he's ready to orchestrate a frontal offensive that would devastate the Badaracco family, as well as our wonderful police department. `If they back me in a corner, I've got to come out fighting.' Now, he might mean this in relation to some public relations campaign that he's going to launch, but the tenor of it and the language of it shows you — it gives you an insight into whether he's the type of person that's a wallflower or he's the type of person that's not afraid." (State's closing, p. 24, lines 23-27; p. 25, lines 1-7.) "The defendant's behavior in the bar, I would characterize almost as an ambush. And I think that says a lot about his character." (State's rebuttal, p. 20, lines 19-21.)
F
As previously discussed, in the present case, the prosecutor's remarks were, to some extent, invited by defense counsel. Defense counsel repeatedly, personally referenced the prosecutor, referring to him by name, rather than as the state. Further, defense counsel suggested that the state was attempting to trick the jury. Defense counsel, while accusing the state of interjecting its own opinion, interjected his own opinion about the evidence. Defense counsel further accuses the state of relying upon facts not in evidence, when he did the same. Defense counsel also used his closing argument to play upon the sympathy of the jury. "The tone of defense counsel's closing argument lessened the `prejudicial impact' of the prosecutor's comment[s]." State v. Rivera, supra, 61 Conn. App. 771.
"I — I want to tell the story what — what happened here and the reasonable inferences that you can draw from this evidence — and I'm asking you to draw reasonable inference from evidence. I'm not doing what Mr. Murray's [the state's attorney's] doing which is just positing a theory of what happened that has no — no basis in the evidence. A shot in anger. Where in God's earth does he come up with that." (Defense closing, p. 8, lines 5-13.)
"Do you find it offensive that this cowboy hat is sitting on the one table in that dining room next to the only bottle of beer on a Super Bowl Sunday. Who did that? Who staged that? That had to be staged. Did the state ever explain that to you?" (Defense closing. p. 16, lines 11-15.)
See footnote 5.
Defense: "Mr Saunders is sitting in a jail cell. We know because it was brought out that he never made a million dollar bond. Sitting in a jail cell for four years and he's writing letters.
State: "I — I got to object. I think —
Court: "All right. They're — It's your recollection that counts but there's no evidence as to the amount of bond and counsel, again is drawing on evidence." (Defense closing, p. 35, lines 22-27; p. 36, lines 1-5.)
"Now, if somebody you loved — if some close friend of yours was laying dying on the floor would you run to their side, hold their hand, cradle them and then quickly exit before help arrives or the police arrives or would you stand with them for as long as you possibly could." (Defense closing, p. 39, lines 26-27; p. 40, lines 1-4.)
The state attacked the defense through both its own witnesses and those of the defendant. The state presented a very strong case against the defendant. "Furthermore, both counsel argued and the trial court instructed the jury that the arguments and statements of counsel during summation were not evidence and that it was the jurors' recollection of the evidence that should have weight in their deliberations, rather than counsel's statements in final argument. When viewed in this context, the remarks were not so prejudicial that the defendant was deprived of the opportunity for a fair trial or that the entire proceedings were tainted." State v. Chasse, supra, 51 Conn. App. 363. Also, with one exception, the defendant made no objections to the state's remarks and failed to ask for any curative instruction with regard to any comments made during the state's summation. The defendant, therefore, presumably did not regard these remarks as seriously prejudicial at trial. See State v. Chasse, supra, 51 Conn. App. 356. Furthermore, the fact that all of the defendant's claims focus on remarks made only during final arguments demonstrates that such comments were not a pervasive quality of the entire proceeding. See State v. Rivera, supra, 61 Conn. App. 774.
See footnote 7.
This instruction was provided during the state's closing; see footnote 6; as well as during the charge to the jury.
Defense counsel made one objection during the state's closing wherein the state characterized the defendant's injuries as being self-induced due to his actions in the bar with the gun and analogized the defendant claiming self-defense to that of a "kid that kills his parents and says `I'm an orphan.' He's taking advantage." (State's closing, p. 29. lines 20-22.) The defense objected stating, "This is an unfair statement of the law. This is simply not the law." (State's closing, p. 29, line 27; p. 30, line 1.) The court at that time instructed the jury: "Ladies and gentlemen, you will be advised that the law again comes from the Court and you are bound by the Court's legal instructions." (State's closing, p. 30, lines 2-5.)
CONCLUSION
The court holds, for the foregoing reasons, that the state's comments, although improper and inartfully phrased, did not amount to a substantial prejudice such as to deny the defendant due process and require a new trial.
The defendant's motion for a new trial is denied.
Holden, J.