State v. Albino ( 2014 )

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STATE OF CONNECTICUT v. JONATHAN ALBINO
(SC 18866)
(SC 18867)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued October 30, 2013—officially released August 5, 2014
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Maureen Platt,
state’s attorney, Patrick J. Griffin, senior assistant
state’s attorney, and Raheem L. Mullins, former assis-
tant state’s attorney, for the appellant in Docket No. SC
18866 and the appellee in Docket No. SC 18867 (state).
Pamela S. Nagy, assigned counsel, for the appellee
in Docket No. SC 18866 and the appellant in Docket
No. SC 18867 (defendant).
Opinion
McDONALD, J. Following our grants of certification,
the defendant, Jonathan Albino, and the state separately
appealed from the Appellate Court’s judgment affirming
the defendant’s conviction of murder in violation of
General Statutes § 53a-54a. In his appeal, the defendant
challenges the Appellate Court’s determination that
only certain statements by the prosecutor during trial
and closing argument were improper, and that those
improprieties did not deprive the defendant of a fair
trial. In its appeal, the state contends that, in deeming
one category of statements improper, the Appellate
Court improperly extended this court’s holding in State
v. Singh, 259 Conn. 693, 712, 793 A.2d 226 (2002), which
barred the prosecutor from asking a defendant whether
another witness’ conflicting testimony is ‘‘wrong,’’ to
the prosecutor’s closing argument. We conclude that
the state’s appeal must be dismissed because the state
is not aggrieved by the judgment of the Appellate Court,
but we nonetheless consider its claim as an alternative
ground for affirmance. We further conclude that the
defendant was not deprived of a fair trial. Accordingly,
we affirm the judgment of the Appellate Court.
The Appellate Court’s opinion sets forth the following
facts that the jury reasonably could have found. ‘‘[The
defendant] worked daily selling heroin behind a three-
story apartment building located at 132 Locust Street
in Waterbury (building). He [only speaks Spanish], and
most of his customers . . . spoke Spanish. The heroin
selling operation was run by William Ramos . . . .
Ramos employed approximately five or six young men,
including the defendant . . . . During his shift, which
usually was from 3 to 10 p.m., the defendant carried a
loaded firearm.
‘‘On September 18, 2006, the defendant worked [past]
his usual shift . . . . During that time [people
attending a party in the building] were congregating
both inside and outside the building, while loud music
played. Ramos, who testified for the state, was on the
second floor of the building overseeing his drug selling
operation. At approximately 10:30 p.m., the defendant
was sitting on the stairs just above the second floor
landing when the victim, Christian Rivera, approached
the building on a bicycle [and then left the bicycle
in front of the building]. When Rivera approached the
[dimly lit] stairwell, he had his hands in his pockets,
and he was wearing a hooded sweatshirt with the hood
up. The defendant descended the stairwell, thinking
that Rivera was there to purchase heroin.
‘‘As Rivera approached the landing, the defendant,
who could not see Rivera’s face, instructed him in Span-
ish to remove his hands from his pockets and to take
down the hood of his sweatshirt. Rivera did not respond
to the defendant’s instructions and continued his
approach. Rivera was not acting in an aggressive man-
ner, and Ramos saw nothing in Rivera’s actions that
caused him concern. As the defendant and Rivera came
[close to] one another, the defendant pushed Rivera
and again ordered him to take his hands out of his
pockets and to remove his hood. Again, Rivera did not
respond to the defendant, kept his hands in his pockets
and continued to move forward. The defendant pushed
Rivera a second time and felt something hard in Rivera’s
pocket. The defendant then brandished a nine millime-
ter semiautomatic firearm, pulled back the slide and
aimed the firearm at Rivera. . . . [Seconds later, the]
defendant fired the weapon approximately eight times
at close range, hitting Rivera four times. The defendant
stopped firing when Rivera fell to the ground. . . .
Rivera died as a result of these gunshot wounds. When
the police found Rivera’s body, he had no weapons,
money or identification on him. He did, however, have a
bottle of Poland Spring water in his pocket. The medical
examiner’s office determined that . . . three of the
four bullets that struck Rivera . . . entered from the
back of his body [and the fourth entered from his
left side].
‘‘Immediately after the shooting, the defendant ran
upstairs and gave the firearm to his friend, Angel Garcia,
and then left the scene. The defendant removed the red
T-shirt he had been wearing and discarded it into some
bushes. He later telephoned his friend, Jose Velez, tell-
ing Velez that he needed to get away because he had
shot someone. . . . During [a subsequent car] ride
[accompanying Velez to New York], the defendant told
Velez and the other men in the vehicle, Luis Rios and
Zachary Gonzalez, that he had shot a man on Locust
Street because the man would not respond to his orders.
. . . [The following day, the defendant learned that an
arrest warrant had been issued for him, and on the
evening of September 20, 2006, he turned himself in to
the Waterbury police].
‘‘Thereafter, the defendant was advised, in Spanish,
of his Miranda1 rights. He waived his rights . . . and
willingly offered to tell his story to Detective George
Tirado and Sergeant Michael Slavin. Although Tirado
was able to communicate verbally with the defendant
in Spanish, he was concerned about his ability to tran-
scribe the defendant’s written statement. Therefore, a
state certified high school Spanish teacher, Yesenia
Diaz, was called upon to transcribe the defendant’s
written statement in Spanish. . . . In his statement, the
defendant admitted to shooting Rivera [and to stopping
only when he saw Rivera fall to the ground, at which
point he ran up the stairs]. The defendant further admit-
ted that he had fired at Rivera because, as Rivera walked
toward him, Rivera ignored [the defendant’s] com-
mands [to] remove his hands from his pockets and take
off his hood. [The defendant offered no other explana-
tion for the shooting.]’’ (Footnote in original.) State v.
Albino, 130 Conn. App. 745, 747–50, 24 A.3d 602 (2011).
The record reveals the following additional facts.
During the defendant’s trial on the charge of murder,
he took the stand and asserted that he had shot Rivera
in self-defense. According to the defendant, in addition
to Rivera’s failure to heed the defendant’s command to
take his hands out of his pockets, he also said, as he
came close to the defendant, ‘‘give me the drugs, give
me the money.’’ In response, the defendant told Rivera
that he was crazy and pushed him, but Rivera continued
to walk up the stairs. When the defendant pushed Rivera
a second time, he felt something hard in Rivera’s pocket
and feared that this object might be a gun. In response,
the defendant pulled out his gun and engaged the mech-
anism that readied it to discharge, initially pointing it
at the ground. When Rivera continued toward the defen-
dant without heeding the defendant’s repeated demand
to take his hands out of his pockets, the defendant
feared that Rivera would shoot him. At that point, the
defendant started shooting at Rivera, while retreating
backward up the stairs, until there were no bullets left
in the gun. As the defendant turned to flee, Rivera was
still standing. The defendant fled from Waterbury
because he feared that Rivera would come after him.
In support of his theory, the defendant attempted to
impeach the state’s witnesses regarding their accounts
of his actions and statements. He also offered the fol-
lowing affirmative evidence. To explain his capacity to
give a less than full and accurate statement to the police,
he presented evidence of his low IQ, just above the
threshold for mental retardation. To explain the eight
shots fired, the defendant offered expert testimony
regarding ‘‘reflex trigger pull,’’ a phenomenon that
occurs when a person confronted with a life-threatening
situation holds a gun so tightly that he may reflexively
discharge numerous rounds before his mind can signal
his hand to release the trigger. To bolster his robbery
claim, the defendant offered hostile witness testimony
from Rivera’s sister, who acknowledged that Rivera
had been selling and using drugs and that he had been
worried about a $240 drug debt. The defendant also
offered evidence that Rivera had pleaded guilty to
charges of attempt to commit assault in the third degree
and reckless endangerment for conduct that had
occurred two years before his death, for which he had
received one year suspended sentences.
The court instructed the jury on the charged offense
of murder, as well as the justification of self-defense,
and on the lesser included offenses of manslaughter in
the first degree with a firearm in violation of General
Statutes § 53a-55a and manslaughter in the second
degree with a firearm in violation of General Statutes
§ 53a-56a. The jury found the defendant guilty of mur-
der, and the trial court rendered judgment in accor-
dance with the verdict, imposing a term of fifty years
imprisonment.
The defendant directly appealed to this court from
the judgment; see General Statutes § 51-199 (b); raising
three challenges to his conviction, including that he
had been deprived of a fair trial because of improper
statements made by the prosecutor during trial and
in closing argument. We transferred the appeal to the
Appellate Court, where the defendant contended with
respect to that claim that the prosecutor: ‘‘(1) repeat-
edly commented on the guilt of [the] defendant and
attempted to influence the jury by his persistent use of
the terms victim, murder, and murder weapon through-
out the trial; (2) argued that to acquit [the] defendant,
the jury would have to find that every other witness
was wrong in violation of State v. Singh, [supra, 259
Conn. 693]; (3) appealed to the jurors’ passions and
emotions; (4) denigrated the integrity of defense coun-
sel in closing argument; and (5) attempted to influence
the jurors about the credibility of his witnesses through
improper means.’’ (Internal quotation marks omitted.)
State v. Albino, supra, 130 Conn. App. 756. The Appel-
late Court concluded that only the first and second
categories of the challenged statements were improper,
as well as part of the challenged statements in the fifth
category insofar as the prosecutor had asked state wit-
nesses whether they were testifying truthfully, but ulti-
mately held that the defendant was not deprived of a
fair trial. Id., 758–82. The court rejected the defendant’s
other claims and affirmed the judgment of conviction.
Id., 756, 784.
We thereafter granted the defendant’s petition for
certification to appeal, limited to the issue of whether
the Appellate Court properly concluded that the defen-
dant was not deprived of a fair trial. State v. Albino,
302 Conn. 941, 29 A.3d 466 (2011). We also granted the
state’s petition for certification, limited to the issue of
whether the Appellate Court improperly extended and
applied this court’s holding in Singh to the prosecutor’s
closing argument regarding the jury’s weighing of con-
flicting testimony. State v. Albino, 302 Conn. 940, 29
A.3d 466 (2011).
I
We first address the state’s appeal in light of a jurisdic-
tional defect that mandates its dismissal. It is apparent
upon further reflection that the state lacks the
aggrievement necessary to appeal from the judgment
of the Appellate Court.
It is settled law that a party must be aggrieved by
the judgment in order to have standing to appeal there-
from. See Gold v. East Haddam, 290 Conn. 668, 676,
966 A.2d 684 (2009); see also General Statutes § 51-197f
(limiting right of review of Appellate Court judgment
by way of ‘‘petition by an aggrieved party’’). Such
aggrievement may be established when a party has pre-
vailed on the merits but nonetheless has not received
the full measure of relief requested. See State v. T.D.,
286 Conn. 353, 358–59, 944 A.2d 288 (2008). By contrast,
aggrievement generally is lacking when a party has pre-
vailed on the merits and has obtained the relief sought
but is unsatisfied with the rationale articulated in sup-
port of the judgment. See State v. Preston, 286 Conn.
367, 373 n.4, 944 A.2d 276 (2008).
Although we recognize that the state is bound by the
courts’ determinations of the limits of proper prosecu-
torial conduct, we now are persuaded that the state’s
appeal falls into the second category, as the Appellate
Court has affirmed the judgment in which the defendant
was convicted of the greater offense charged by the
state. This is not to say, however, that the state lacks
any avenue to contest the Appellate Court’s determina-
tion as to prosecutorial impropriety. When, as in the
present case, the adverse party is aggrieved and does
appeal, the nonaggrieved party may raise such a claim
as an alternative ground for affirmance. Id. Because
this issue has been fully briefed by the parties and is
intertwined with issues raised in the defendant’s appeal,
we address the state’s claim in our resolution of that
appeal. Accordingly, the state’s appeal is dismissed.
II
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . We first
examine whether prosecutorial impropriety occurred.
. . . Second, if an impropriety exists, we then examine
whether it deprived the defendant of his due process
right to a fair trial. . . . In other words, an impropriety
is an impropriety, regardless of its ultimate effect on
the fairness of the trial.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) State v. Long,
293 Conn. 31, 36, 975 A.2d 660 (2009).
We first address those statements that the defendant
contends should have been deemed improper by the
Appellate Court and then turn to the statements that the
state contends were proper, contrary to the Appellate
Court’s conclusion. In light of those conclusions, we
turn to the question of whether the sum of any impropri-
eties deprived the defendant of a fair trial. For the
reasons set forth subsequently in this opinion, although
our conclusions differ from some of the Appellate
Court’s conclusions as to the propriety of certain state-
ments, we agree that the defendant was not deprived
of a fair trial.
A
‘‘Prosecutorial impropriety can occur during both the
cross-examination of witnesses and in the course of
closing or rebuttal argument.’’ Id., 37. In reviewing
claims of such impropriety, we apply well established
standards. See generally State v. Medrano, 308 Conn.
604, 610–12, 619–21, 65 A.3d 503 (2013). Briefly stated,
the prosecutor, as a public official seeking impartial
justice on behalf of the people of this state, ‘‘has a
heightened duty to avoid argument [or questioning] that
strays from the evidence or diverts the jury’s attention
from the facts of the case.’’ (Internal quotation marks
omitted.) Id., 612. Nonetheless, we have recognized that
‘‘the privilege of counsel in addressing the jury should
not be too closely narrowed or unduly hampered
. . . .’’ (Internal quotation marks omitted.) Id.
1
Improper Appeals to the Jurors’ Emotions,
Passions and Prejudices
We begin with the defendant’s claim that certain ref-
erences to Rivera during closing argument were
improper appeals to the jurors’ emotions, in that they
either focused on factors that had nothing to do with the
defendant’s guilt or innocence or used overly dramatic
language.2 See State v. Camacho, 282 Conn. 328, 375,
924 A.2d 99 (recognizing that such statements are
improper), cert. denied, 552 U.S. 956, 128 S. Ct. 388,
169 L. Ed. 2d 273 (2007); State v. Alexander, 254 Conn.
290, 307, 755 A.2d 868 (2000) (same). 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 evi-
dence, however, the more likely they will be deemed
permissible. See State v. Camacho, supra, 375 (‘‘[s]uch
appeals should be avoided because they have the effect
of diverting the [jurors’] attention from their duty to
decide the case on the evidence’’ [internal quotation
marks omitted]). Thus, we conclude that comments that
Rivera was ‘‘peppered with bullets’’ and that ‘‘the first
bullet tore into his body’’ were not improper as they
are factually accurate descriptions of the evidence that
were not unduly provocative.
Several other comments did, however, stray beyond
that line. At oral argument before this court, the state
conceded that the prosecutor improperly had argued
that Rivera was alone as he approached the defendant
and his crew but that ‘‘Rivera won’t be alone anymore,
because you’re going to get this case.’’ See State v.
Williams, 204 Conn. 523, 547, 529 A.2d 653 (1987) (‘‘[i]t
is improper for the prosecutor to encourage the jury
to identity with the victim’’). We also conclude that
gratuitous comments about the defendant ‘‘executing’’
Rivera and committing ‘‘murder in cold blood’’ were
improper, considering that the defendant’s evidence
was deemed sufficient to warrant jury instructions on
lesser included offenses inconsistent with a wholly
unprovoked act of brutality that has been deemed by
courts to justify the use of such terms. Compare State v.
Medrano, supra, 308 Conn. 616 (prosecutor’s statement
that defendant acted as victim’s ‘‘ ‘judge, jury and execu-
tioner’ ’’ was improper); Duckett v. State, 919 P.2d 7,
19 (Okla. Crim. App. 1995) (‘‘‘[d]on’t you be a party to
letting a cold-blooded killer loose’ ’’ deemed improper
argument); Commonwealth v. Bricker, 506 Pa. 571, 586,
487 A.2d 346 (1985) (improper to refer to defendant as
cold blooded killer); Commonwealth v. Brown, 490 Pa.
560, 566–68, 417 A.2d 181 (1980) (description of shoot-
ing as ‘‘execution’’ improper but not prejudicial if
invited by defense counsel); Nolan v. State, 568 S.W.2d
837, 840 (Tenn. Crim. App. 1978) (comment about mur-
der in ‘‘ ‘cold blood’ ’’ deemed improper), with Com-
monwealth v. Murphy, 442 Mass. 485, 496, 813 N.E.2d
820 (2004) (statement that victims were murdered ‘‘ ‘in
cold blood’ ’’ not improper where evidence permitted
inference that murders were unprovoked, senseless,
and brutal); People v. Walton, Docket No. 259584, 2006
WL 2033999, *2 (Mich. App. July 20, 2006) (prosecutor’s
characterization of offense as ‘‘ ‘execution’ ’’ not
improper because clearly supported by evidence that
defendant and accomplices made unarmed victims lie
down on floor and then shot them); State v. Harris,
338 N.C. 211, 229, 449 S.E.2d 462 (1994) (at trial for
first degree murder involving calculated armed robbery
and unprovoked killing, it was not improper for prose-
cutor to refer to defendant as ‘‘ ‘cold-blooded
murderer’ ’’).
In addition, we see no connection between the issues
in the present case and the prosecutor’s comment
regarding ‘‘the indignity of death’’ when showing the
jury Rivera’s autopsy photograph. Because the lack of
dignity in Rivera’s appearance has no relevance to the
issues in the present case, this statement would seem
calculated solely to appeal to the jurors’ emotions.3
Lacking relevance to the elements of the charged
offenses, we disagree with the state that this comment
falls within the rule permitting the prosecutor to argue
an inference that the jury could have drawn entirely on
its own based on the evidence presented. See State v.
Stevenson, 269 Conn. 563, 585, 849 A.2d 626 (2004)
(prosecutor properly argued that state’s witnesses did
not have motive to lie, whereas defendant and his wit-
nesses did have such motive).
2
Impugning Defense Counsel
We next turn to the defendant’s claim that the prose-
cutor improperly characterized defense counsel’s strat-
egy in a manner to suggest that he employed tactics
intended to mislead the jury.4 See State v. Orellana, 89
Conn. App. 71, 101, 872 A.2d 506 (distinguishing
between improper argument disparaging integrity or
role of defense counsel and proper argument disparag-
ing theory of defense), cert. denied, 274 Conn. 910, 876
A.2d 1202 (2005). During trial, the defendant elicited
evidence intended to call into question whether the
police had coerced several state witnesses into giving
statements adverse to the defendant. In his closing argu-
ment, the prosecutor analogized the defense strategy
to an octopus’ defense mechanism of shooting ink into
the water, thus muddying the water so the octopus can
escape.5 The prosecutor also referred to the defense
strategy as a ‘‘shotgun approach. You shoot it against
the wall and you hope that something will stick.’’ These
statements were improper and our recent comments
deeming the use of effectively similar terms improper
bear repeating: ‘‘We previously have expressed our dis-
approval of a prosecutor’s use of [the] term [smoke and
mirrors], even as an isolated reference . . . because it
implie[s], to whatever degree, that defense counsel had
not based his argument on fact or reason . . . but had
intended to mislead the jury by means of an artfully
deceptive argument. . . . Indeed . . . a prosecutor
who uses the phrase smoke and mirrors implie[s] that
the defendant’s attorney intended to deceive and
thereby impugn[s] the integrity of the defendant’s attor-
ney.’’6 (Citation omitted; internal quotation marks omit-
ted.) State v. Maguire, 310 Conn. 535, 557, 78 A.3d
828 (2013). We further explained in Maguire that this
impropriety was compounded by, inter alia, statements
that ‘‘defense counsel . . . had attempted to sidetrack
the jury through misdirection and by all of the ‘stuff’
that he ‘tried to throw against the wall’ during his closing
remarks to the jury. Of course, if the prosecutor had
wished to focus the jury on weaknesses in the defen-
dant’s theory of defense, there were ample ways for
her to do so that would not have involved belittling
remarks or personal attacks on the credibility of the
defendant and defense counsel.’’ (Footnote omitted.)
Id., 557–58.
3
Bolstering the Witness’ Credibility
The defendant also contends that the prosecutor
improperly bolstered the credibility of Carlos Ayala,
a jailhouse informant testifying for the state.7 Ayala
testified regarding a conversation he had had with the
defendant in which the defendant’s account of the
shooting was consistent with the statement he had given
to the police, including the omission of any facts indica-
tive of an attempted armed robbery. Before giving that
testimony, Ayala acknowledged that he hoped to obtain
favorable treatment from the state regarding pending
charges in his own case, but stated that no one from
the Office of the State’s Attorney had discussed his case
or made any promises to him. In subsequent direct
examination, the prosecutor made statements reiterat-
ing that the state had not promised Ayala anything in
exchange for his testimony and that Ayala was free to
change his story. See footnote 7 of this opinion. Then,
in closing argument, the prosecutor stated: ‘‘[T]he
state’s not promising anything to . . . Ayala and he
made that clear to you, and we make it clear to the
jury.’’ (Emphasis added.)
Because the prosecutor effectively testified to the
state’s lack of any promises to Ayala in the guise of
questioning, such statements were improper. See State
v. Singh, supra, 259 Conn. 717 (‘‘[a] prosecutor . . .
shall not . . . [a]ssert his personal knowledge of the
facts in issue, except when testifying as a witness’’
[internal quotation marks omitted]). Contrary to the
Appellate Court’s conclusion, it is irrelevant to the
impropriety analysis whether Ayala also testified that
the state had offered him no promises in exchange for
his testimony, although such a fact would bear on the
ultimate due process question. By reiterating the lack
of promises, the prosecutor impermissibly bolstered
Ayala’s credibility. This inference was compounded by
the statement in closing argument using the collective
pronoun ‘‘we,’’ thus aligning Ayala with the state.
‘‘[Although a] prosecutor is permitted to comment [on]
the evidence presented at trial and to argue the infer-
ences that the jurors might draw therefrom, he is not
permitted to vouch personally for the truth or veracity
of the state’s witnesses.’’ (Internal quotation marks
omitted.) State v. Payne, 260 Conn. 446, 454, 797 A.2d
1088 (2002); see also State v. Thompson, 266 Conn.
440, 462, 832 A.2d 626 (2003) (‘‘[A] prosecutor may not
express his own opinion, directly or indirectly, as to
the credibility of the witnesses. . . . 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.’’ [Internal quotation marks omitted.]).
4
The Jury’s Duty to Convict Argument
Finally, the defendant claims that the prosecutor
improperly argued that it was the jury’s duty to convict
the defendant of the crime charged. We note, however,
that the prosecutor actually indicated that, if the jury
held the state to its burden of proof and considered the
evidence, the jury had a duty to convict the defendant
of murder rather than one of the lesser included
offenses.8 We further note that, in his closing and rebut-
tal arguments, the prosecutor also argued to the jury
that, if it believed that Rivera had confronted the defen-
dant for the purpose of robbing him and that the defen-
dant was justified in acting in self-defense, the jury
should find him not guilty. Thus, the statement at issue
does not suffer from the defect that this court previously
has identified in cases in which the ‘‘do your duty’’
argument was linked to matters external to the case or
unconnected to the evidence. See State v. Reynolds,
264 Conn. 1, 183, 836 A.2d 224 (2003) (‘‘it generally is
improper for the state to argue that the jurors’ oath
obligates them to return a particular verdict because
such language poses a risk of diverting the jury from
its duty of deciding the case on the basis of the evidence
and the applicable law’’), cert. denied, 541 U.S. 908, 124
S. Ct. 1614, 158 L. Ed. 2d 254 (2004); see, e.g., State
v. Ceballos, 266 Conn. 364, 395, 832 A.2d 14 (2003)
(statement by prosecutor improper that pointed to child
victim’s courage in doing her part by testifying and then
added ‘‘ ‘[w]ith all due respect, ladies and gentlemen,
it’s now time for you to do your part’ ’’); State v. Whip-
per, 258 Conn. 229, 271 and n.19, 780 A.2d 53 (2001)
(prosecutor improperly suggested that jury had duty, as
members and representatives of community, to convict
defendant), overruled in part on other grounds by State
v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004), and
State v. Grant, 286 Conn. 499, 535, 944 A.2d 947, cert.
denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200
(2008). Nor does it suffer from the defect that appears
in the cases from other jurisdictions on which the defen-
dant relies, in which such a statement was made in
isolation, without reference to the evidence in the case.9
See, e.g., United States v. Young, 470 U.S. 1, 18, 105 S.
Ct. 1038, 84 L. Ed. 2d 1 (1985); United States v. Sanchez,
176 F.3d 1214, 1224–25 (9th Cir. 1999); Redish v. State,
525 So. 2d 928, 929–30 (Fla. App. 1988); State v. Scott,
286 Kan. 54, 79, 183 P.3d 801 (2008). Instead, in making
the ‘‘do your duty’’ comment, the prosecutor ‘‘did not
invite the jury to abdicate a rational appraisal of the
evidence and to decide the case on its emotions’’; State
v. Garrett, 42 Conn. App. 507, 514 n.8, 516, 681 A.2d 362,
cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996);
because he reminded the jurors to reach a verdict on
the basis of the evidence and the state’s burden of
proof. See also United States v. Sanchez, supra, 1225
(suggesting that ‘‘[i]t is probably appropriate for a prose-
cutor to argue to the jury that ‘if you find that every
element of the crime has been proved beyond a reason-
able doubt, then, in accord with your sworn duty to
follow the law and apply it to the evidence, you are
obligated to convict, regardless of sympathy or other
sentiments that might incline you otherwise’ ’’).
Although we conclude that the particular comment
in the present case was not improper, no doubt ‘‘[t]here
is perhaps a fine line between a proper and improper
‘do your duty’ argument.’’ Id.
B
Having reviewed the statements that the defendant
contends were improper, contrary to the conclusions
of the Appellate Court, we now turn to the state’s claim
that the Appellate Court improperly concluded that cer-
tain statements in the prosecutor’s closing argument
violated the rule set forth in State v. Singh, supra, 259
Conn. 712, regarding characterizing witnesses’ testi-
mony as ‘‘wrong.’’ The state contends that Singh did
not extend this prohibition to closing argument. We
conclude that the Appellate Court went too far in con-
struing Singh as articulating a per se rule that applies
equally to the questioning of witnesses and statements
in closing argument as to this particular term. Nonethe-
less, we conclude that, under the facts and circum-
stances of the present case, the prosecutor’s comments,
viewed collectively, violated the principles in Singh.
In the present case, the prosecutor stated in his clos-
ing argument: ‘‘Ladies and gentlemen, in order for you
to find the defendant not guilty of the crime of murder,
you have to find that everybody is wrong in this case.
The police are wrong. The detectives who interviewed
him are wrong. The defendant’s own friends and associ-
ates are wrong. . . . Yesenia Diaz is wrong, the inter-
preter. Right? And almost incredible, you’ve got to find
that the defendant’s own statement is wrong, that he
was wrong, because he didn’t tell the cops that he acted
in self-defense. You can’t do that. You can’t do that.’’
(Emphasis added.)
Then, in his rebuttal argument, the prosecutor stated:
‘‘Now, ladies and gentlemen, remember the language
the defendant used when he took the stand. He tells
you that this statement is not a verbatim transcript of
what was said in there. So what he’s done is he’s saying
that . . . Yesenia Diaz has testified untruthfully.
He’s testifying truthfully. She’s testifying untruth-
fully. And therein lies one of the central roles of the
jury, right, you’ve got to decide whose credibility you
believe. . . .
***
‘‘[Yesenia Diaz] is a window for you into the interview
room. If you find that she’s not credible, then you find
the defendant’s version credible, because they’re in
complete conflict, aren’t they? They’re in conflict.
Ladies and gentlemen, in order for you to find the defen-
dant not guilty you have to find that every single person
in this case is wrong. William Ramos, Edwin Gonza-
lez, Luis Rios, Aida Perez, Carlos Ayala, Detective
Milford Hayes, who tells you how Edwin Gonzalez’
statement was taken. Detective George Tirado, Detec-
tive Mike Slavin . . . Yesenia Diaz and the defendant
himself.’’ (Emphasis added.)
With this background in mind, we turn to our decision
in State v. Singh, supra, 259 Conn. 693. In Singh, the
defendant had contended that the prosecutor improp-
erly asked him to characterize testimony of other wit-
nesses during cross-examination and improperly
emphasized that testimony in closing argument. Id., 702.
Specifically, on cross-examination, the prosecutor
repeatedly asked the defendant whether testimony that
conflicted with his own was incorrect, made up, wrong
or a lie. Id., 702–703. Then, in closing argument, the
prosecutor argued that the defendant would have the
jury believe that ‘‘ ‘everyone else’ ’’ whose account con-
flicted with his own or offered unfavorable testimony
had lied. Id., 705–706. In addressing the defendant’s
claim, this court explained: ‘‘We previously have not
had the opportunity to address the well established
evidentiary rule [in other jurisdictions] that it is
improper to ask a witness to comment on another wit-
ness’ veracity. . . . A few of these courts have drawn a
distinction between using the words wrong or mistaken
rather than lying in questions and closing arguments,
concluding that the former terms are not improper
because they merely [highlight] the objective conflict
without requiring the witness to condemn the prior
witness as a purveyor of deliberate falsehood, i.e., a
liar. . . .
‘‘Several reasons underlie the prohibition on such
questions. First, it is well established that determina-
tions of credibility are for the jury, and not for wit-
nesses. . . . Consequently, questions that ask a
defendant to comment on another witness’ veracity
invade the province of the jury. . . . Moreover, [a]s a
general rule, [such] questions have no probative value
and are improper and argumentative because they do
nothing to assist the jury in assessing witness credibility
in its fact-finding mission and in determining the ulti-
mate issue of guilt or innocence. . . .
‘‘Second, questions of this sort also create the risk
that the jury may conclude that, in order to acquit the
defendant, it must find that the witness has lied. . . .
This risk is especially acute when the witness is a gov-
ernment agent in a criminal case. . . . A witness’ testi-
mony, however, can be unconvincing or wholly or
partially incorrect for a number of reasons without any
deliberate misrepresentation being involved . . . such
as misrecollection, failure of recollection or other inno-
cent reason. . . .
‘‘Similarly, courts have long admonished prosecutors
to avoid statements to the effect that if the defendant
is innocent, the jury must conclude that witnesses have
lied. . . . The reason for this restriction is that [t]his
form of argument . . . involves a distortion of the gov-
ernment’s burden of proof. . . . Moreover, like the
problem inherent in asking a defendant to comment
on the veracity of another witness, such arguments
preclude the possibility that the witness’ testimony con-
flicts with that of the defendant for a reason other than
deceit.’’ (Citations omitted; footnotes omitted; internal
quotation marks omitted.) Id., 706–10.
Ultimately, this court declined ‘‘the state’s invitation
to carve out an exception to the rule that a witness
may not be asked to characterize another witness’ testi-
mony as a lie, mistaken or wrong’’ in cases in which
the defendant’s testimony contradicts another witness’
testimony. Id., 712. This court then added: ‘‘Moreover,
closing arguments providing, in essence, that in order
to find the defendant not guilty, the jury must find
that witnesses had lied, are similarly improper.’’ Id.
We explained in a footnote to the first sentence that
addressed the questioning of witnesses that we would
not ‘‘make [a] distinction between using the word
‘wrong’ as opposed to ‘lying.’ . . . Although ques-
tioning whether a witness’ testimony is wrong may, at
first blush, seem less egregious, we conclude that it is
nonetheless improper because it requires the witness
to characterize testimony and may lead to the same
problematic results.’’ (Citations omitted.) Id., 712 n.16.
Thus, in Singh, this court identified as its principal
concern relating to asking a witness to characterize
another witness’ testimony as wrong a concern that is
not implicated in closing argument, namely, that such
questions improperly invade the province of the jury
to make credibility assessments. See id., 706–707. It
was due to this concern that we declined to allow the
prosecutor to use the term ‘‘wrong,’’ despite the fact
that courts have recognized that this term is sufficiently
broad to encompass various reasons other than lying
that would explain conflicting testimony. Id., 708. In
other words, irrespective of whether the prosecutor
frames the question to ask a defendant whether another
witness is wrong, mistaken or has lied, the question
equally calls on the defendant to characterize the wit-
ness’ testimony. By contrast, when the prosecutor
argues that the jury must conclude that one of two
versions of directly conflicting testimony must be
wrong, the state is leaving it to the jury to make that
assessment. Moreover, by framing the argument in such
a manner, the jury is free to conclude that the conflict
exists due to mistake (misperception or misrecollec-
tion) or deliberate fabrication.
Therefore, we disagree with the clear implication in
the Appellate Court’s decision in the present case that
it would be improper under Singh for a prosecutor
simply to state in closing argument that, where there
are two directly conflicting accounts of an incident, one
must be wrong. See State v. Albino, supra, 130 Conn.
App. 766. On the other hand, we also disagree with the
state that the use of the term ‘‘wrong’’ instead of ‘‘lying’’
always will be proper argument. Singh underscored
a particular concern with argument that ‘‘involves a
distortion of the government’s burden of proof.’’ (Inter-
nal quotation marks omitted.) State v. Singh, supra, 259
Conn. 709. For this reason, we concluded that ‘‘closing
arguments providing, in essence, that in order to find
the defendant not guilty, the jury must find that wit-
nesses had lied, are . . . improper.’’ (Emphasis
added.) Id., 712. Thus, Singh left open the possibility
that a prosecutor’s argument could make this sugges-
tion to the jury without using the word ‘‘lying.’’
We conclude that, in the present case, although no
single comment in isolation may have violated the rule
articulated in Singh regarding closing argument, the
comments viewed in totality did so. Indeed, the com-
ments implicated many of the concerns that we had
identified in Singh. The prosecutor made a direct con-
nection between the defendant’s acquittal and the credi-
bility of every other witness in the case. Cf. State v.
Wright, 76 Wash. App. 811, 824–25, 888 P.2d 1214 (1995)
(‘‘The argument made here did not present the jury with
a false choice between believing the [s]tate’s witnesses
or acquitting [the defendant]. Therefore, it was not mis-
leading.’’). With respect to one witness, Diaz, the state
specifically argued that the defendant had characterized
her testimony as a lie, when he had not done so. By then
stacking the testimony of every single state witness,
including Diaz, against that of the defendant, the jury
undoubtedly could have inferred that the prosecutor
was arguing that, to acquit the defendant, the jury would
have to conclude that every other witness had lied.10
Cf. People v. Dace, 237 Ill. App. 3d 476, 485, 604 N.E.2d
1013 (1992) (concluding that prosecutor’s comment in
closing argument that ‘‘ ‘if you want to let this defendant
walk . . . tell all these [witnesses] they are wrong’
. . . impermissibly misstated the law and distorted the
burden of proof by telling the jury, in effect, it could
find the defendant not guilty only if it believed the
[s]tate’s witnesses were all lying or mistaken’’).
The prosecutor’s argument also precludes the possi-
bility that the jury could have either credited parts of
both the testimony of state witnesses (including the
defendant’s police statement) and the defendant’s trial
testimony or reconciled evidence that the state claims
was in direct conflict. While the state views the defen-
dant’s failure to mention the gun or robbery threat to
the police as directly conflicting with his trial testi-
mony, the defendant’s statements to the police and oth-
ers arguably can be reconciled with his testimony. The
defendant told the police that he had shot Rivera after
Rivera did not comply with the defendant’s commands
to take his hands out of his pockets. The jury could
have concluded that the defendant’s fear that Rivera
would use the gun in his pocket would have been allayed
if Rivera had obeyed the defendant’s command. In light
of the testimony of the defendant’s expert regarding
the defendant’s limited intellectual capacity, the jury
may have believed that these two things—the gun in
Rivera’s pocket and Rivera’s removal of his hands from
his pockets—were inextricably linked in the defen-
dant’s mind and, because of his inability to appreciate
the need to volunteer such information to the police,
the defendant simply answered the questions as he
understood them. Although, for reasons set forth in part
II C of this opinion, we do not believe that the jury
would have drawn such a conclusion, it was improper
for the prosecutor to argue to the jury that it would
have to find that every witness was wrong in order to
acquit the defendant.
C
In light of our conclusions set forth previously in this
opinion, we now must consider whether the sum of
the improprieties deprived the defendant of a fair trial.
Those improprieties include, in addition to those dis-
cussed in parts II A and B of this opinion, the following
statements deemed improper by the Appellate Court
that the state has conceded for purposes of this appeal:
(1) improper expressions of opinion as to the guilt of the
defendant and the credibility of witnesses by referring
repeatedly to the ‘‘victim,’’ ‘‘murder,’’ and ‘‘murder
weapon’’ when the defendant claimed that no crime
had occurred because the killing was justified as self-
defense;11 State v. Albino, supra, 130 Conn. App. 759;
and (2) improper attempts to influence the jury about
the credibility of the state’s witnesses by asking certain
witnesses whether they were telling the truth or were
prepared to tell the truth. Id., 772. We conclude that
the defendant was not deprived of a fair trial.
When a defendant demonstrates improper questions
or remarks by the prosecutor during the course of trial,
the defendant bears the burden of showing that, ‘‘con-
sidered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of
due process.’’ (Internal quotation marks omitted.) State
v. Medrano, supra, 308 Conn. 620. ‘‘The question of
whether the defendant has been prejudiced by prosecu-
torial [impropriety] . . . depends on whether there is
a reasonable likelihood that the jury’s verdict would
have been different absent the sum total of the impropri-
eties.’’ State v. Thompson, supra, 266 Conn. 460. This
assessment is made through application of ‘‘the factors
set forth in State v. Williams, supra, 204 Conn. 540,
with due consideration of whether that misconduct 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 mea-
sures adopted . . . and the strength of the state’s
case.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Medrano, supra, 619–20.
We note at the outset that the defendant made no
objection to any of these remarks and took no measures
to seek curative instructions. Therefore, he ‘‘bears much
of the responsibility for the fact that [these] claimed
impropriet[ies] went uncured.’’ (Internal quotation
marks omitted.) State v. Warholic, 278 Conn. 354, 402,
897 A.2d 569 (2006). Moreover, a fair implication can
be inferred that the defendant did not view the remarks
to be unduly prejudicial. See id. (‘‘defense counsel may
elect not to object to arguments that he or she deems
marginally objectionable for tactical reasons, namely,
because he or she does not want to draw the jury’s
attention to it or because he or she wants to later refute
that argument’’ [internal quotation marks omitted]).
We conclude that the improper remarks were not
invited by defense counsel, that many of the improprie-
ties related in varying degrees to a central issue in the
case—the credibility of the defendant’s claim of self-
defense, and that the improprieties spanning both the
examination of witnesses and closing argument were
not isolated. See State v. Angel T., 292 Conn. 262, 289–
90, 973 A.2d 1207 (2009) (state elicited improper evi-
dence through two witnesses and discussion of this
evidence during both opening and rebuttal summations
deemed frequent); State v. Warholic, supra, 278 Conn.
398 (‘‘the instances of prosecutorial misconduct were
not isolated because they occurred during both the
cross-examination of the defendant and the prosecu-
tor’s closing and rebuttal arguments’’). Nonetheless, we
conclude that the remaining factors clearly support a
conclusion that the improprieties did not deprive the
defendant of a fair trial.
With respect to the strength of the curative measures
adopted, the defendant’s failure to object or to ask for
such measures to be taken deprived the court of an
opportunity to address the improprieties with any speci-
ficity. Nonetheless, the court’s general instructions, a
written copy of which was provided to the jury, likely
mitigated the effect of some of the improprieties. The
court instructed the jury that it should not be influenced
by sympathy or prejudice, that the jury was the sole
arbiter of facts, that attorneys’ arguments are not evi-
dence, that conflicts in testimony may be due to factors
other than dishonesty, and that it is proper to consider
the credibility of a witness with pending charges in light
of the witness’ interest in receiving favorable treatment
from the state.
With respect to the severity of the improprieties, we
conclude that the defendant’s failure to object is consis-
tent with our view that many of the improprieties were
just over the line of acceptable conduct.12
In the end, the defendant’s claim founders on the
final factor of the Williams test, the strength of the
state’s case. In particular, the physical evidence and
the defendant’s own testimony demonstrate why there
is not a reasonable likelihood that the jury’s verdict
would have been different absent the improprieties.
There is no dispute that the defendant shot Rivera, that
he discharged eight bullets and that four of these hit
Rivera. Not one of the bullets entered the front of Rive-
ra’s body; all of the bullets entered Rivera’s back or his
left side. Therefore, the position of Rivera’s body was
not consistent with a posture of aggression but one
of retreat.
According to the defendant’s own testimony, Rivera
never acted in an aggressive manner toward him. The
defendant conceded that Rivera’s purported statement
asking for the drugs and the money was not made in
a threatening tone. Rivera never claimed to have a gun
or any other weapon or threatened any harm to the
defendant. The defendant never claimed that Rivera
had pointed the object in his pocket at the defendant.
When the defendant twice pushed Rivera, who was
shorter and smaller than the defendant, Rivera never
responded in kind but just continued up the stairs.
The defendant’s claim that Rivera came to the build-
ing to rob him also lacks credibility in light of the cir-
cumstances to which he and others testified: Rivera
arrived by bicycle and numerous other people—par-
tygoers and other armed drug dealers working for
Ramos—were nearby. There is no evidence that the
defendant called out to warn others that Rivera had a
gun or to otherwise indicate that Rivera was there to
do harm before he shot Rivera. Nor is there evidence
that he warned others when fleeing the scene, which
not only undermines his claim that Rivera had a gun
but also his claim that Rivera was still standing when
the defendant fled the scene.
Finally, the defendant’s statements to others strongly
support the conclusion that the defendant fabricated
the robbery. The defendant’s claim that his failure to
include any mention of the attempted robbery in his
statement to the police was due to his low IQ is under-
mined by the fact that the defendant purposefully lied
in that statement regarding his drug dealing so as not
to get either himself or Ramos into trouble. Even if the
defendant’s intellectual limitations could have impacted
his ability to appreciate the need to make a full disclo-
sure in response to police questioning, it does not
explain the fact that no friend or acquaintance with
whom the defendant spoke about the shooting indicated
that the defendant ever had mentioned that Rivera tried
to rob him or that he thought Rivera had a gun. In light
of all this evidence, as well as consciousness of guilt
evidence, we conclude that the sum total of any impro-
prieties did not deprive the defendant of a fair trial.
The appeal in SC 18866 is dismissed; the judgment
of the Appellate Court in SC 18867 is affirmed.
In this opinion ROGERS, C. J., and EVELEIGH and
VERTEFEUILLE, Js., concurred.
1
v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
The defendant challenges the following portions of the state’s closing
argument: ‘‘No one asks you to forgive the life that William Ramos has led.
But are you prepared to say that if a man commits murder in cold blood
in front of a witness who has a criminal record that he can walk away
because the witness has a felon[y] record? Are you prepared to say that? . . .
***
‘‘Isn’t that what [the defendant] told you? But I thought [Rivera] or I
thought the man I shot might be chasing after me. That would be this guy,
right, that’s peppered with bullet holes. Peppered with bullet holes. . . .
‘‘Now, ladies and gentlemen, one of the most difficult things about this
case, or about any murder case, is the fact that you don’t know anything
about the victim [Rivera]. The defense put in today two misdemeanor convic-
tions. You don’t know anything about that. When you look at [Rivera] in
this photograph it’s in the indignity of death, isn’t it? Right? But what
you see there is a human being. If Christian Rivera used drugs, if he sold
drugs and he were arrested and convicted, he should go to jail for that. But
there’s been nothing presented in this case that would justify the defendant
taking that nine millimeter pistol and executing him. Nothing.
‘‘Now, ladies and gentlemen, Christian Rivera can’t speak to you today,
and he can’t tell you what he saw in the moments before the first bullet
tore into his body. He can’t tell you which bullet hit him first. The only
person that’s testified in this case that Christian Rivera tried to rob someone
was the defendant.’’ (Emphasis added.)
The defendant also challenges this portion of the state’s rebuttal argument:
‘‘Now, ladies and gentlemen, when Christian Rivera went up the steps on
that fatal night he was alone. He was all alone. The defendant had his
crew behind him or his team. And in a few minutes, ladies and gentlemen,
Christian Rivera won’t be alone anymore, because you’re going to get this
case. You’re going to have the case in your hands and you’re going to decide
what the facts are. Justice dictates that you return a verdict of guilty on
murder.’’ (Emphasis added.)
3
The state contends that the prosecutor’s subsequent statement directing
the jury to reach its verdict on the basis of the evidence and not out of
sympathy for Rivera casts the prosecutor’s statements in a different light
so as to bring them within the scope of proper argument. We disagree.
The state cannot always remove the taint of improper argument simply by
thereafter reciting a statement acknowledging the jury’s duty not to decide
the case on the basis of improper considerations.
4
The defendant challenges this portion of the state’s rebuttal argument:
‘‘Now, ladies and gentlemen, like the legal shows that we talked about,
there’s a lot of animal dramas on TV, right? About a year ago there was this
show about the creatures of the deep and they had talked about sharks,
they talked about dolphins and all the different ways that animals protect
themselves in the water. They had one, and it was very interesting, it was
an octopus. Do you know how the octopus protects itself in the water? It
shoots out ink into the water. Do you know what happens when you shoot
out the ink? The water gets muddy and the octopus swims away. That’s
what’s being attempted here. Defense counsel wants you to focus on the
police. She wants me to say that the police aren’t on trial. Evaluate the
police officers’ conduct. You should. Absolutely you should. But don’t lose
sight from the fact for one second that the defendant’s on trial. And every
moment that you spend evaluating other people’s conduct is time that you’re
not spending evaluating the defendant’s conduct, and that’s called a shotgun
approach. You shoot it against the wall and you hope that something will
stick.’’ (Emphasis added.)
5
The octopus analogy has been the subject of due process claims in many
other jurisdictions, with a split of authority as to whether it is per se improper.
Several courts have suggested that it is improper but insufficient on its own
to deprive a defendant of a fair trial. See United States v. Matthews, 240
F.3d 806, 819 (9th Cir. 2001) (‘‘In this case, the [g]overnment walked—and
may have overstepped—the line by insinuating that defense counsel was
trying to hide the truth. Since [the defendant] did not object to this commen-
tary at trial, however, we must examine whether the statements had an
impact on [his] substantial rights. The statements made in this case are
unworthy of a representative of our government, but under all the circum-
stances of this case, they are not plain error.’’), rev’d in part on other grounds,
278 F.3d 880 (9th Cir. 2002); People v. Cummings, 4 Cal. 4th 1233, 1302,
850 P.2d 1, 18 Cal. Rptr. 2d 796 (1993) (acknowledging improper implication
could be drawn from expression, suggesting that taint from impropriety
removed by curative instruction but ultimately concluding that claim was
not properly preserved for review); Settles v. United States, 615 A.2d 1105,
1113–14 (D.C. 1992) (suggesting any impropriety did not deprive defendant
of fair trial under all circumstances); People v. McCann, 348 Ill. App. 3d
328, 338–39, 809 N.E.2d 211 (2004) (suggesting that analogy was improper
but did not rise to level of plain error to require new trial); People v. Light,
480 Mich. 1198, 748 N.W.2d 518 (2008) (The court stated in its order denying
leave to appeal: ‘‘[W]e take this opportunity to emphasize that it is improper
for a prosecutor to make a personal attack on defense counsel, suggesting
to jurors in closing argument that counsel is intentionally trying to mislead
them. Although such conduct may not require reversal in a given case, it is
still improper and unbecoming of a representative of the state.’’).
Some courts have squarely stated that this analogy is improper; see, e.g.,
People v. Townsend, 136 Ill. App. 3d 385, 413–14, 483 N.E.2d 340 (1985);
People v. Crawford, Docket No. 302648, 2012 WL 3139473, *6 (Mich. App.
August 2, 2012), appeal denied, 493 Mich. 920, 823 N.W.2d 589 (2012); Hanson
v. State, 72 P.3d 40, 49 (Okla. Crim. App. 2003); whereas others have consid-
ered the analogy proper in the context of the arguments as a whole. See,
e.g., People v. Clark, Docket No. 281460, 2010 WL 4137437, *2 (Mich. App.
October 21, 2010) (not improper when viewed in context because rebuttal
statement was responsive to certain statements in defense counsel’s closing
argument); State v. Mousel, 373 N.W.2d 359, 363 (Minn. App. 1985) (not
improper in situation in which analogy directly connected to specific ‘‘ ‘dis-
tractions’ ’’ that defense raised); State v. Munroe, Docket No. E2008-00129-
CCA-R3-CD, 2010 WL 2473309, *11 (Tenn. Crim. App. June 18, 2010) (constru-
ing remark contextually as argument that defense theory was not worthy
of belief in light of evidence); Davis v. State, Docket No. 13-03-291-CR, 2004
WL 1584921, *2 (Tex. App. July 15, 2004) (concluding that analogy did not
attack defense counsel personally but instead was used to explain evidence
and respond to argument offered by defense). We note that the analysis in
many of these jurisdictions appears to differ from ours in that they conflate
the questions of whether a comment was improper and whether an improper
comment deprived the defendant of a fair trial.
6
In State v. Salamon, 287 Conn. 509, 559, 949 A.2d 1092 (2008), we con-
cluded that, ‘‘[a]lthough the term ‘smoke screen’ is more problematic [than
‘red herring’] because it may be viewed as connoting an intent to deceive;
see [Webster’s Third New International Dictionary] (defining ‘smoke screen’
as ‘something designed to obscure, confuse, or mislead’); we cannot say
that the use of that term, which was isolated, rises to the level of an impropri-
ety.’’ In retrospect, it appears that we conflated the questions of whether
the statement was improper and whether the impropriety deprived the
defendant of a fair trial. Under the latter, we consider the frequency of the
impropriety as one factor. See State v. Warholic, 278 Conn. 354, 396, 897
A.2d 569 (2006); cf. State v. Outing, 298 Conn. 34, 85, 3 A.3d 1 (2010)
(expressing disapproval of prosecutor’s use of terms smoke screen or smoke
and mirrors ‘‘even as an isolated reference’’), cert. denied, U.S. , 131
S. Ct. 1479, 179 L. Ed. 2d 316 (2011).
7
The defendant challenges the following comments during Ayala’s direct
examination by the prosecutor:
‘‘Q. What made you want to bring this to the attention of the state’s
attorney’s office or to law enforcement in general?
‘‘A. Maybe it could help my case.
‘‘Q. So that’s what you hoped was going to happen?
‘‘A. Yes, sir.
‘‘Q. Again, I’m going to tell you, because if you want to change your
story, go ahead and change it, there’s no promises to you. Okay? Period
and end of story. Now, do you understand that?
’’A. Yes, sir.
‘‘Q. That’s one thing to hope that something’s going to happen, and it’s
another thing to be told or expected. Did anybody give you any reason to
expect something good is going to happen with all your charges?
‘‘A. No, sir.
‘‘Q. You understand that?
‘‘A. Yes.’’ (Emphasis added.)
The defendant also challenges the following statement in the prosecutor’s
closing argument: ‘‘Ayala hopes he gets something for testifying? Sure he
does. Sure he does. But the point is the defendant admits that he had the
conversation with [Ayala], right, so that’s a check one right there. The second
thing is the state’s not promising anything to . . . Ayala and he made that
clear to you, and we make it clear to the jury.’’ (Emphasis added.)
8
The prosecutor argued: ‘‘[H]old the state of Connecticut to our burden.
Evaluate our witnesses. Look at the evidence in this case. Hold the state
to it. But if you do that, and you do your duty as jurors, there’s only one
conclusion you can reach, not that it’s manslaughter in the first degree or
manslaughter in the second degree, but this is murder and that it was
not justified.’’
9
Only one of the cases brought to our attention by the defendant involved
a statement deemed improper when the state had made a connection
between the duty to convict and the state’s satisfaction of its burden of
proof. That case is distinguishable from the present case, however, in that
the government did not argue that the jury would have a duty to convict if
the jury found that the state had met its burden and did not argue that a
contrary conclusion would justify acquittal. See United States v. Mandel-
baum, 803 F.2d 42, 43 (1st Cir. 1986) (The court deemed the following
statement improper: ‘‘ ‘I think, ladies and gentlemen, that when you finish
examining all these materials, you will be able to find, I suggest to you, that
there is ample evidence there for you to find beyond any reasonable doubt
that [the defendant] did in fact commit the acts that the government charges
her with. And I would ask you, therefore, to do your duty and return a
verdict of guilty.’ ’’); see id., 44 (‘‘[t]here should be no suggestion that a jury
has a duty to decide one way or the other; such an appeal is designed to
stir passion and can only distract a jury from its actual duty: impartiality’’).
10
As we previously have explained, under Singh, it is not per se improper
to argue that the jury must conclude that one side of conflicting accounts
must be wrong. Although we conclude that it would be unwise in the present
case to attempt to articulate a bright line rule as to when such argument
would be improper, we urge prosecutors to avoid statements directly con-
necting these assessments to the defendant’s conviction or acquittal.
11
We note that the state did seek certification on this first issue, but we
limited the grant of certification to the state’s challenge to the Singh viola-
tion. At oral argument before this court, the state explained that it had
conceded this impropriety in its brief to this court, despite its view that the
use of these terms is not improper, on the assumption that our decision
not to grant certification on this issue signaled our intention to leave the
Appellate Court’s conclusion undisturbed. We would remind the state that
‘‘[t]he exercise of discretionary jurisdiction, by way of certification, is prem-
ised on the understanding that a denial of discretionary review leaves the
underlying judgment in place without an endorsement of its merits. [A]
denial of certification does not necessarily indicate our approval either of
the result reached . . . or of the opinion rendered . . . .’’ (Internal quota-
tion marks omitted.) Grieco v. Zoning Commission, 226 Conn. 230, 233 n.5,
627 A.2d 432 (1993). As we explain in part I of this opinion, the state would
have been free to raise this claim as an alternative ground for affirmance.
We therefore conclude that, because this issue was not briefed by the
parties and would not be dispositive in the present case in any event, it is
inappropriate to consider the propriety of the Appellate Court’s conclusion.
12
The defendant contends that the Appellate Court improperly relied on
this court’s decision in State v. Thompson, supra, 266 Conn. 440, as setting
a ‘‘standard’’ by which the severity of prosecutorial impropriety is measured.
See State v. Albino, supra, 130 Conn. App. 779. We construe that court’s
statement—’’employing the Thompson standard, as we must, we conclude
that the improprieties were not severe’’; id.; simply to mean that the court
properly considered whether the severity of the conduct in the present case
was greater than conduct that this court previously had deemed not to be
severe. A comparative analysis is useful in these cases, but we agree with
the defendant that the improprieties in each case must be considered in
light of the case’s unique facts and circumstances.