State v. Jordan ( 2014 )

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STATE OF CONNECTICUT v. VICTOR JORDAN, SR.
(SC 19135)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued April 21—officially released October 14, 2014
Pamela S. Nagy, assigned counsel, for the appel-
lant (defendant).
Robin S. Schwartz, special deputy assistant state’s
attorney, with whom, on the brief, were Maureen Platt,
state’s attorney, and Terence Mariani, senior assistant
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Victor Jordan, Sr.,
was convicted, after a jury trial, of possession of an
amphetamine-type substance with intent to sell by a
person who is not drug-dependent in violation of Gen-
eral Statutes § 21a-278 (b), and possession of an
amphetamine-type substance with intent to sell within
1500 feet of a school in violation of General Statutes
§ 21a-278a (b), on the basis of evidence seized from his
person and a closet in which he had been hiding pursu-
ant to a search incident to his arrest.1 On appeal,2 the
defendant contends that: (1) the trial court improperly
denied his motion to suppress drugs seized from the
closet because the closet was not within his immediate
control; (2) the evidence was insufficient to support
either conviction because it did not establish his knowl-
edge and intent; and (3) he is entitled to a new trial due
to improper comments made during the prosecutor’s
closing argument. We conclude that, even if we were
to assume that the trial court improperly denied the
motion to suppress, any error would be harmless
beyond a reasonable doubt in light of the validly seized
evidence from the defendant’s person. Although we also
conclude that this evidence, in and of itself, is sufficient
to sustain the defendant’s conviction for possession
with intent to sell, we agree that the evidence is insuffi-
cient to demonstrate the defendant’s intent to sell
within a school zone. Finally, we are not persuaded
that any prosecutorial impropriety requires a new trial.
Therefore, we affirm in part and reverse in part the
judgment.
The jury reasonably could have found the following
facts. On April 16, 2008, at approximately 7:40 a.m.,
officers assigned to a multijurisdictional fugitive task
force arrived at 555 Congress Avenue in Waterbury
looking for the defendant with the intent to arrest him
on multiple outstanding felony warrants. That address
is within 1500 feet of a public elementary school. The
task force included Lieutenant Patrick Deely of the
Middlebury Police Department, Sergeant Michael Pon-
zillo and Detective Orlando Rivera of the Waterbury
Police Department, and Sergeant Gerald Pinto of the
Stratford Police Department.
When they arrived, the officers approached the rear,
first floor apartment door of the two-family home and
entered an enclosed porch. The door to the apartment
was open and they began shouting ‘‘police’’ to announce
their presence. They were then met by the homeowner,
Richard Colangelo, Sr., to whom the officers showed a
photograph of the defendant. Colangelo acknowledged
that the defendant was in the home and directed them
through the kitchen to a small back bedroom. When
the officers entered the bedroom, they saw a younger
man in the room, who they later learned was the home-
owner’s son, Richard Colangelo, Jr. (Richard). After
police asked Richard if the defendant was present, he
pointed toward the bedroom closet. The officers asked
Richard to leave the room and then drew their weapons,
shouting for the defendant to come out of the closet
with his hands up. When the defendant did not comply,
Pinto and Rivera entered the closet to extricate him.
After a brief struggle, the two officers pulled the defen-
dant out of the closet into the main area of the bedroom,
at which time the other officers held him facedown on
the floor and handcuffed him, with his hands behind
his back. This process, from the time the officers
entered the bedroom to the time they subdued the
defendant on the floor, took one minute or less.
Once the defendant was removed from the closet,
Ponzillo searched him and found a small, clear plastic
bag containing thirty ecstasy3 pills in his pocket. With
the defendant still prone on the floor, two officers
searched the closet to look for a weapon. The closet
was dark and messy, and the officers needed flashlights
to conduct the search. After looking for five to ten
minutes, they recovered no weapon but discovered a
bag near where the defendant had been hiding con-
taining three plastic bags of ecstasy pills. One bag con-
tained seven pills, one bag contained twenty pills, and
the third bag contained 132 pills. The pills retrieved
from the closet, like the pills found in the defendant’s
pocket, all had the letter ‘‘G’’ imprinted on one side and
the silhouette of a woman imprinted on the other side.
The record reveals the following additional proce-
dural history. Prior to trial, the defendant filed a motion
to suppress the drugs found both in the closet and on
his person. The trial court held an evidentiary hearing,
at which only the state presented witnesses. The court
thereafter denied the motion to suppress, concluding
that the searches were constitutionally permissible.
With respect to the search of the closet, the trial court
found that the defendant had been lying a ‘‘short dis-
tance’’ from the closet at the time the police searched
therein.4 The court further found that Pinto and Rivera
had gone into the closet to look for a weapon after the
defendant had been handcuffed.5 Nonetheless, the court
found that, ‘‘it [was] not inconceivable that [the defen-
dant] may have grabbed for a gun’’ and therefore the
officers were justified in searching the immediate sur-
rounding area for weapons. The trial court held that
the search of the closet was a lawful search incident
to arrest, relying in part on State v. Fletcher, 63 Conn.
App. 476, 777 A.2d 691, cert. denied, 257 Conn. 902, 776
A.2d 1152 (2001), a case in which the defendant also
had been handcuffed during a search of a closet that
was deemed a valid search incident to an arrest.6
Following trial, the jury returned a verdict of guilty
of both counts alleging possession of an amphetamine-
type substance with intent to sell and possession of an
amphetamine-type substance with intent to sell within
1500 feet of a school. See footnote 1 of this opinion. The
trial court thereafter rendered judgment in accordance
with the verdict and imposed a total effective sentence
of eighteen years imprisonment.7 This appeal followed.
I
We begin with the defendant’s challenge to the trial
court’s decision denying his motion to suppress. The
defendant has abandoned his challenge to the seizure
of the pills from his person, limiting his claim on appeal
to the pills seized from the closet. The defendant claims
that the search of the closet was unlawful under the
fourth and fourteenth amendments to the United States
constitution and that, because the drugs found in the
closet were the fruit of an illegal search, he is entitled
to a new trial. Relying on Chimel v. California, 395
U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969),8 and
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L.
Ed. 2d 485 (2009),9 the defendant argues that a search
incident to arrest is invalid if the search extends beyond
the area ‘‘under [an arrestee’s] immediate control’’;10
(internal quotation marks omitted) Chimel v. Califor-
nia, supra, 764; and that officers may not search ‘‘[i]f
there is no possibility that an arrestee could reach’’ that
area. Arizona v. Gant, supra, 339. The defendant argues
that Gant clarified Chimel to set a standard under which
a search incident to an arrest may take place only when
the arrestee is unsecured and within reaching distance
of the area searched. The defendant argues that this
standard was not satisfied in the present case because:
(1) he was lying facedown on the floor, facing away
from the closet, with his hands handcuffed behind his
back when the officers searched the closet; (2) there
were five or six officers, some armed, surrounding him
in the small bedroom; (3) he was approximately eight
feet away from the deepest part of the closet where
the drugs were found; and (4) the closet was dark,
messy and awkwardly shaped. The defendant further
contends that the police officers’ testimony indicated
that the search was not for the officers’ protection in
that they admitted to searching for a gun for five to ten
minutes after the defendant was secured and that such
a weapon search was routine procedure. Finally, the
defendant argues that State v. Fletcher, supra, 63 Conn.
App. 476; see footnote 6 of this opinion; on which the
trial court had relied, is factually distinguishable or, in
the alternative, should be overruled in light of Gant.
In response, the state argues that, under State v.
Fletcher, supra, 63 Conn. App. 476, the area within the
defendant’s immediate control includes a closet within
four feet of a handcuffed defendant. The state therefore
argues that the search of the closet in the present case
‘‘fell squarely within the authority of Fletcher and the
trial court properly relied upon it in denying the defen-
dant’s motion to suppress.’’ The state further argues
that the defendant’s reliance on Gant as rendering
Fletcher no longer good law is misplaced. The state
acknowledges the holding in Gant that a search is
invalid if conducted after the arrestee has been secured
and cannot access the area searched, but questions
whether Gant extends beyond automobile searches. It
contends, however, that even if it does, Gant is factually
distinguishable because there was no threat to officer
safety in Gant, as there was in the present case.11 In
the alternative, the state argues that any error in denying
the motion to suppress was harmless beyond a reason-
able doubt because the jury had before it credible evi-
dence that the defendant possessed and intended to
sell the thirty pills found in his pocket. With respect to
this alternative ground, the defendant contends that the
jury could not have determined whether the pills in his
pocket were for sale or personal use because the state
did not produce evidence of the potency of the ecstasy
pills seized.
In our view, there is no doubt that, given the defen-
dant’s criminal history; see footnote 11 of this opinion;
the police officers had a reasonable basis to believe
that the defendant may have had a weapon in the closet.
Moreover, given the defendant’s lack of compliance
with the officers at the scene, it was reasonable for the
officers to assume that, even after being restrained, the
defendant might act irrationally by attempting to access
the closet to obtain a weapon if one had in fact been
hidden there.12 See United States v. McConney, 728 F.2d
1195, 1207 (9th Cir. 1984) (‘‘Chimel does not require
the police to presume that an arrestee is wholly rational.
Persons under stress may attempt actions which are
unlikely to succeed.’’), overruled on other grounds by
Estate of Merchant v. Commissioner Internal Revenue
Service, 947 F.2d 1390, 1392–93 (9th Cir. 1991).
Nonetheless, the facts present a close case as to
whether there was a realistic possibility that the defen-
dant could have gained access to the closet interior
such that it could be said to be within the defendant’s
immediate control under Chimel. Because the defen-
dant was surrounded by four police officers, some of
whom were armed, and was lying facedown with his
hands cuffed behind his back, it would have been
extremely difficult for the defendant to gain access to
the small closet in which two more officers were
located, let alone access a weapon therein. The remote-
ness of this possibility seems to be supported by the
fact that the officers continued to search the closet for
up to ten minutes while leaving the defendant in close
proximity rather than removing him from the scene.
We also acknowledge that the law is unsettled on
what it means for an area to be within an arrestee’s
immediate control. In particular, courts disagree over
whether there must be some realistic possibility that
the defendant would be able to reach the area searched
at the time of the search or whether such a possibility
only need to have existed at the time of arrest.13 More-
over, federal courts are split as to whether Gant estab-
lished a more limited search incident to arrest standard
that is applicable in all contexts or is limited to automo-
bile searches. See United States v. Curtis, 635 F.3d
704, 713 n.22 (5th Cir. 2011) (acknowledging split of
authority); United States v. Brewer, 624 F.3d 900, 905–
906 (8th Cir. 2010) (declining to apply Gant to search
of arrestee’s person), cert. denied, U.S. , 131 S.
Ct. 1805, 179 L. Ed. 2d 670 (2011); United States v.
Shakir, 616 F.3d 315, 318 (3d Cir.) (concluding Gant
applies beyond automobile searches), cert. denied,
U.S. , 131 S. Ct. 841, 178 L. Ed. 2d 571 (2010).
Ultimately, we conclude that the present case does
not require us to weigh in on this debate. Even if we
assume, without deciding, that the facts and the law
should have led the trial court to suppress the evidence
seized from the closet, we are fully convinced that any
improper admission of the evidence is harmless beyond
a reasonable doubt in light of the unchallenged evidence
seized from the defendant’s person.
‘‘It is well settled that constitutional search and sei-
zure violations are not structural improprieties requir-
ing reversal, but rather, are subject to harmless error
analysis.’’ State v. Esarey, 308 Conn. 819, 832, 67 A.3d
1001 (2013). Accordingly, we often have declined to
decide fourth amendment issues attendant to the legal-
ity of a search or seizure when it is clear that any
‘‘erroneous admission into evidence of the fruits of the
search was harmless beyond a reasonable doubt.’’
(Internal quotation marks omitted.) Id. ‘‘The harmless
error doctrine is rooted in the fundamental purpose of
the criminal justice system, namely, to convict the guilty
and acquit the innocent. . . . Therefore, whether an
error is harmful depends on its impact on the trier of
fact and the result of the case. . . . This court has held
in a number of cases that when there is independent
overwhelming evidence of guilt, a constitutional error
would be rendered harmless beyond a reasonable doubt
. . . [but] the state bears the burden of proving that
the error was harmless . . . . [W]e must examine the
impact of the evidence on the trier of fact and the result
of the trial. . . . If the evidence may have had a ten-
dency to influence the judgment of the jury, it cannot
be considered harmless. . . . That determination must
be made in light of the entire record [including the
strength of the state’s case without the evidence admit-
ted in error].’’ (Citations omitted; internal quotation
marks omitted.) State v. Mitchell, 296 Conn. 449, 459–60,
996 A.2d 251 (2010).
In considering the strength of the state’s case, we
are mindful that intent is often proved by circumstantial
evidence. See State v. Lewis, 303 Conn. 760, 770, 36
A.3d 670 (2012); State v. Baldwin, 224 Conn. 347, 355,
618 A.2d 513 (1993). While ‘‘[t]he quantity of narcotics
found in the defendant’s possession [is] probative of
whether the defendant intended to sell drugs’’; (internal
quotation marks omitted) State v. Francis, 90 Conn.
App. 676, 682, 879 A.2d 457, cert. denied, 275 Conn.
925, 883 A.2d 1248 (2005); so too is ‘‘evidence that the
defendant had been a seller of narcotics in the past
. . . .’’ State v. Baldwin, supra, 355; see also State v.
Jordan, 135 Conn. App. 635, 647–48, 42 A.3d 457 (prior
misconduct evidence admissible to prove intent), cert.
granted, 305 Conn. 918, 47 A.3d 388 (2012). Evidence
of a defendant’s prior sales of narcotics ‘‘is relevant to
the nature of his possession of the drug at the time of the
alleged offense.’’ (Internal quotation marks omitted.)
State v. Baldwin, supra, 355.
We acknowledge that the state contended in its clos-
ing argument that the collective quantity of pills seized
from both the defendant’s person and the closet ‘‘in
and of itself’’ proved the defendant’s intent to sell. None-
theless, the state offered ample additional circumstan-
tial evidence that proved beyond a reasonable doubt
that the defendant intended to sell the thirty pills he
possessed on his person at the time of his arrest, irre-
spective of the pills seized from the closet, and that no
rational juror could reach a different conclusion.
The state’s expert witnesses provided uncontradicted
testimony regarding the nature of ecstasy and its gen-
eral use and sale. That testimony established that
ecstasy is the street name for pills containing Methylen-
edioxyamphetamine, also known as MDA. Ecstasy is a
schedule 1 drug, as it has no known medical use. The
pills are not produced by pharmaceutical companies,
but by drug dealers. Although the potency of a pill can
vary depending on the amount of MDA included in the
mixture, the normal dosage is 80 to 120 milligrams. A
typical user of ecstasy will purchase one or two pills
at a time to take over the course of a single night. The
high from one ecstasy pill typically lasts four to six
hours. Drug dealers often imprint a specific stamp on
a pill to ensure that, if the buyer likes that particular
product, he or she will return to buy that same pill again.
The state also offered the following evidence specific
to the defendant. The thirty pills found on the defendant
appeared to be the typical dose of ecstasy, and tests
revealed the presence of MDA, although no quantitative
analysis was done to determine the specific amount of
MDA in the pills. The pills had the letter ‘‘G’’ imprinted
on one side and the silhouette of a woman stamped
on the other side. Two women who had known the
defendant prior to his arrest testified that they had seen
him in possession of, and selling, ecstasy pills in the
past with those same markings. Toni Stevens stated
that she had seen the defendant sell three to five pills
per transaction to various persons. Jennifer Campbell
stated that she had seen the defendant sell the pills for
$10 to $15 each, in strip clubs and other unspecified
places. Both women stated that they had used these
ecstasy pills supplied by the defendant. Campbell’s high
from these pills lasted six to ten hours, while Stevens’
high lasted a ‘‘couple hours.’’
In light of this evidence, we are convinced that the
state proved beyond a reasonable doubt that the thirty
pills found in the defendant’s pocket were not for his
personal use, and that the assumedly inadmissible evi-
dence was so relatively insignificant that there is no
reasonable possibility that its improper admission
affected the jury’s verdict. In other words, we are satis-
fied beyond a reasonable doubt that the result would
be the same without the admission of the assumedly
improper evidence. Indeed, nothing about the facts is
consistent with the conduct of a user of the drug, and
everything about the facts is consistent with the con-
duct of a seller of the drug. On the basis of a typical
user’s conduct and the prices that the defendant pre-
viously had charged, the defendant was carrying on
him a fifteen to thirty day supply of the drug, with an
approximate street value of $300 to $450. His supply
contained identical markings to pills he previously had
sold, consistent with a drug dealer soliciting repeat
business. The pills in the closet were merely cumulative
of the state’s overwhelming evidence of the defendant’s
intent to sell the pills in his pocket.
The only argument advanced by the defendant to
rebut this clear and persuasive evidence is that the jury
might have concluded that the thirty pills were for his
personal use because there was no proof that the pills
were of normal potency. According to the defendant,
because ecstasy pills are homemade, the amount of
MDA in the pills seized from his pocket could have
been much lower than in the typical ecstasy pill. The
defendant posits that the pills seized could have con-
tained an amount of MDA that would require ten pills
to obtain the effect of one typical pill, thus effectively
rendering him in possession of the equivalent of three
pills of a normal dosage. Without evidence of the pills’
dosage, the defendant argues that the jury would have
to engage in speculation and conjecture to determine
if possession of thirty pills was consistent with personal
use or with an intent to sell. We are not persuaded.
Even if the pills were diluted, it would not follow
that there exists a reasonable possibility that the defen-
dant had no intent to sell them. Because the pills in his
possession bore the same markings as the ones the
defendant previously had sold, their street value
undoubtedly remained the same as the other pills. Fur-
thermore, the defendant’s argument ignores that the
jury did have before it evidence from which it could
infer the general potency of the pills in the defendant’s
possession: Campbell testified that her high from one
‘‘G-lady’’ pill obtained from the defendant lasted approx-
imately six to ten hours, and Stevens testified that her
high lasted a ‘‘couple hours.’’ Although this testimony
suggests that the pills may have affected people differ-
ently or may have been of varying degrees of potency,
it is consistent with the state’s expert testimony that
various literature indicates that the typical high from
ecstasy lasts anywhere from three to ten hours. Accord-
ingly, even if we assume that the pills found in the closet
were not seized pursuant to a valid search incident to
an arrest, we conclude that their admission into evi-
dence was harmless error that did not affect the verdict
in this case.
II
We now turn to the defendant’s claim that his convic-
tions of possession of an amphetamine-type substance
with intent to sell by a person who is not drug-depen-
dent and possession of an amphetamine-type substance
within 1500 feet of a school must be vacated because
the evidence is insufficient to sustain the convictions.
With regard to the charge of possession with intent to
sell, the defendant argues that there was no evidence
that he knew of, or exercised control over, the pills in
the closet and no evidence that he intended to sell
the pills in his pocket. With regard to the charge of
possession with intent to sell within 1500 feet of a
school, the defendant argues that the state offered no
evidence that he intended to sell the pills at 555 Con-
gress Avenue or anywhere else within 1500 feet of the
elementary school near that location. The state con-
cedes that the evidence was insufficient to show posses-
sion with intent to sell within 1500 feet of a school, but
argues that the evidence was sufficient to convict the
defendant for possession with intent to sell. For the
reasons set forth in part I of this opinion, we conclude
that the evidence was sufficient to show possession
of an amphetamine-type substance with intent to sell,
solely on the basis of the thirty pills found in the defen-
dant’s pocket. For the reasons that follow, we agree
with the parties that the evidence was insufficient to
show possession of an amphetamine-type substance
with intent to sell within 1500 feet of a school.
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [trier of fact] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . In evaluating evi-
dence, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier may draw
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical. . . . This does not require that each subordi-
nate conclusion established by or inferred from the
evidence, or even from other inferences, be proved
beyond a reasonable doubt . . . because this court has
held that a [trier’s] factual inferences that support a
guilty verdict need only be reasonable.’’ (Internal quota-
tion marks omitted.) State v. Butler, 296 Conn. 62, 76,
993 A.2d 970 (2010).
To sustain a conviction for possession of an amphet-
amine-type substance with intent to sell within 1500
feet of a school, the state must have presented evidence
proving that the defendant had the intent to sell the
pills found on his person at some location within that
proscribed zone. See State v. Lewis, supra, 303 Conn.
771. ‘‘Quite obviously, if [a person] is apprehended while
coincidentally passing through a location, there is no
logical inference that he intended to sell at the location
of the apprehension.’’ (Internal quotation marks omit-
ted.) Id., 773. In the present case, the defendant was
apprehended within the proscribed school zone in pos-
session of a quantity of pills consistent with an intent
to sell. The state presented no evidence, however, from
which an inference could be drawn that the defendant
intended to sell the pills at 555 Congress Avenue or
anywhere else within 1500 feet of the nearby elementary
school. Indeed, the only evidence regarding the defen-
dant’s past drug sales was that they had occurred at
strip clubs and other unspecified locations. Accord-
ingly, although the evidence was sufficient for the jury
to convict the defendant of possession with intent to
sell, it was insufficient to support a conviction for pos-
session of an amphetamine-type substance with intent
to sell within 1500 feet of a school.
III
Finally, we turn to the defendant’s claim of prosecu-
torial impropriety. The defendant contends that Senior
Assistant State’s Attorney Terence Mariani made
improper statements during his rebuttal argument by:
(1) improperly expressing his personal opinion about
the merits of the defendant’s claims and vouching for
the credibility of the police officers; (2) appealing to
the jury’s emotions; and (3) referring to facts not in
evidence. The defendant contends that his convictions
must be reversed because these improprieties denied
him a fair trial. Should this court conclude that Mariani’s
remarks, though improper, did not deprive the defen-
dant of a fair trial, the defendant contends his convic-
tions should be reversed pursuant to this court’s
supervisory powers because of a pattern of misconduct
by Mariani in other cases. We conclude that the defen-
dant was not deprived of a fair trial, and we decline to
exercise our supervisory powers to reverse the defen-
dant’s convictions.
The record reveals the following additional facts. In
his closing argument, defense counsel advanced the
theory that the officers considered the defendant to be
a ‘‘bad guy,’’ and all but stated that, for that reason,
the officers had planted drugs on the defendant that
actually belonged to Richard in order to ‘‘tack on a
possession charge.’’ Defense counsel also sought to dis-
credit Stevens and Campbell by suggesting that they
each had pending charges for which they were seeking
favorable treatment from the state. Specifically, in seek-
ing to discredit Campbell, defense counsel stated that
the state had made an offer of accelerated rehabilitation
to her. Mariani objected, arguing that defense counsel
was referring to information that was neither in evi-
dence nor true because Judge Damiani, not the state,
had given Campbell accelerated rehabilitation. The
court then reminded counsel that arguments are con-
fined to the evidence.
In his rebuttal argument, Mariani made the following
remarks, with the emphasized comments indicating
those to which the defendant has objected on appeal:
‘‘You know, that—that really is outrageous, if you think
about it. Here’s police officers . . . Ponzillo, [James]
Masterson [of the United States Marshal Service] . . .
Deely . . . Rivera, sworn police officers, run around
the city trying to catch bad guys and they come in and
testify about what happened on a particular day—and
he won’t come right out and say it, but what—what’s
he saying? It’s a lie. The police officers all came in here
and perjured themselves because they wanted to get
to [the defendant]. That—that’s what they get for their
hard work. Accused of being liars, planting evidence
and making up not—not only making up lies and putting
them in a police report, but coming in here and swearing
under oath and committing perjury. Person, after per-
son, after person committing perjury to get to [the
defendant]. Give me a break. That’s—that’s what they
get for their hard work in this city to have a defense
attorney stand up here and say, they’re all liars. Poor
[defendant], he’s a victim of circumstance. Give me a
break. . . .
‘‘And he comes in here, [the] defense attorney, and
argues things, that are not before you, why . . . Camp-
bell got accelerated rehabilitation. That was never the
state’s recommendation. . . . There’s a lot of things—
a lot of things that go on while you people are in that
jury room and the reason they go on while you’re in
the jury room is because you’re not supposed to know
exactly what’s going on because the evidence that’s
allowed in front of you comes in front of you. It’s not
for the defense attorney to try and leak out a couple
of things and make you think that one thing happened
when maybe something very different happened here
in court. So don’t believe that nonsense.
’’And here’s the other thing. I mean, not—not only
are the Waterbury police officers and the United States
Marshals and, I guess, the Stratford police and the
Bridgeport police, because, to some extent, they all
confirmed the drugs were found in that room. They’re
all corrupt and they’re all so stupid that they couldn’t
get their stories straight when they were going to come
in here and perjure themselves. That’s the defense.
‘‘Well, how about this, how about this. How about
the fact that a month or two before, both . . . Camp-
bell and . . . Stevens were in his presence and saw
him with the same kinds of pills. Oh, what a fantastic
coincidence. Thank God that all came together so the
police’s lie could be supported. The only reasonable
explanation here is that the police officers were telling
the truth. How could they have known—how could they
have possibly known that those G-lady pills, G on one
side and a naked lady or a lady silhouette on the other,
were going to match up to what other witnesses had
seen him with just [five], [six] weeks before? Come on.
‘‘This case is a slam dunk. The evidence is in. Don’t
let the defense attorney distract you by, you know,
trying to suggest that some underhanded things went
on that you weren’t aware of.
‘‘And don’t believe, for a second, you saw the wit-
nesses testify, that these police officers would come in
here and risk their careers for the likes of [the defen-
dant], don’t believe that.’’ (Emphasis added.)
Our case law on the scope of proper argument recog-
nizes a balance that must be struck. ‘‘[P]rosecutorial
[impropriety] of a constitutional magnitude can occur
in the course of closing arguments. . . . When making
closing arguments to the jury, [however] [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based [on] the facts in evidence
and the reasonable inferences to be drawn therefrom.’’
(Internal quotation marks omitted.) State v. Maguire,
310 Conn. 535, 553, 78 A.3d 828 (2013).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, 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 fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Internal
quotation marks omitted.) State v. Stephen J. R., 309
Conn. 586, 605, 72 A.3d 379 (2013).
We conclude that the majority of the statements chal-
lenged by the defendant fell within the bounds of fair
argument, and therefore limit our discussion to those
statements that exceeded those bounds. The state con-
cedes that Mariani’s comments about the hard work of
the police were improper. Such statements improperly
tend to suggest to the jury that it should credit the
officers’ testimony due to those efforts rather than make
an unbiased determination as to the officers’ credibility
and whether the evidence established the defendant’s
guilt beyond a reasonable doubt. See United States v.
Aguilar, 645 F.3d 319, 324 (5th Cir. 2011) (The court
concluded that it was improper to argue that police
officers ‘‘go out there every day and do their job . . .
strive to protect people like you and me . . . put their
[lives] on the line, protecting us and our kids. And what
do they get for it? They get to come into the courtroom
and be called a liar.’’ [Internal quotation marks omit-
ted.]); see also State v. Singh, 259 Conn. 693, 721–23,
793 A.2d 226 (2002) (concluding that it was improper
for prosecutor to appeal to jury to decide case out of
sense of duty to state).
Although the state does not concede that the argu-
ment that the officers would not have placed their
careers in jeopardy by lying was improper, we conclude
otherwise. The state is correct that a prosecutor prop-
erly may argue that a witness has no motive to lie. See
State v. Warholic, 278 Conn. 354, 365, 897 A.2d 569(2006). That is not, however, what the prosecutor did
in this case. Had Mariani connected these comments
to a lack of motive to lie because the police were
arresting the defendant for felony charges that, in and
of themselves, carried substantial penalties, the state’s
argument might be more persuasive. The comments in
this case, however, were virtually identical to ones that
have been recognized as improperly vouching for the
credibility of the witness if there is no evidence to
support the government’s assertion regarding the offi-
cer’s potential loss of career. See United States v. Boyd,
54 F.3d 868, 871 (D.C. Cir. 1995) (citing various cases
for this proposition); see also United States v. Weath-
erspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (‘‘[T]he
prosecutor . . . clearly urged that the existence of
legal and professional repercussions served to ensure
the credibility of the officers’ testimony. That suffices
for the statement to be considered improper as vouch-
ing based upon matters outside the record . . . .’’ [Cita-
tions omitted.]); Spain v. State, 386 Md. 145, 154, 872
A.2d 25 (2005) (prosecutor transcended boundaries of
proper argument by asserting that false testimony
would expose officer to penalties of perjury and lead
to adverse consequences to his career as police officer).
The state also concedes that Mariani improperly
referred to facts not in evidence when referring to the
fact that it was Judge Damiani, and not the state, who
had offered Campbell accelerated rehabilitation. See
State v. Singh, supra, 259 Conn. 717 (‘‘[s]tatements as
to facts that have not been proven amount to unsworn
testimony’’ [internal quotation marks omitted]); State
v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987)
(‘‘[a] prosecutor, in fulfilling his duties, must confine
himself to the evidence in the record’’). We agree with
the state that, although defense counsel first referred
to this matter, the proper course would have been for
Mariani to ask the trial court to strike the improper
matter and to ask for a curative instruction rather than
to respond in kind.
Having concluded that the aforementioned com-
ments were improper, we turn to the question of
whether these comments deprived the defendant of a
fair trial. In resolving this question, ‘‘we ask whether
the prosecutor’s conduct so infected the trial with
unfairness as to make the resulting conviction a denial
of due process. . . . We do not, however, focus only
on the conduct of the state’s attorney. 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
[impropriety]. . . . To determine whether the . . .
impropriety deprived the defendant of a fair trial, we
must examine . . . [several] factors.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Fauci,
282 Conn. 23, 50–51, 917 A.2d 978 (2007). Among them
are ‘‘the extent to which the [impropriety] was invited
by defense conduct or argument . . . the severity of
the [impropriety] . . . the frequency of the [impropri-
ety] . . . the centrality of the [impropriety] to the criti-
cal issues in the case . . . the strength of the curative
measures adopted . . . and the strength of the state’s
case.’’ (Internal quotation marks omitted.) State v.
Maguire, supra, 310 Conn. 560; see State v. Williams,
supra, 204 Conn. 540 (setting forth these factors).
Although a defendant need not object to prosecu-
torial impropriety to preserve such a claim for review,
‘‘[t]his does not mean . . . that the absence of an objec-
tion at trial does not play a significant role in the applica-
tion of the [Williams] factors. To the contrary, the
determination of whether a new trial or proceeding is
warranted depends, in part, on whether defense counsel
has made a timely objection to any [incident] of the
prosecutor’s improper [conduct]. When defense coun-
sel does not object, request a curative instruction or
move for a mistrial, he presumably does not view the
alleged impropriety as prejudicial enough to jeopardize
seriously the defendant’s right to a fair trial.’’ (Internal
quotation marks omitted.) State v. Maguire, supra, 310
Conn. 560–61.
In the present case, defense counsel did not object,
request a curative instruction or move for a mistrial.
Moreover, we are not persuaded that the Williams fac-
tors as a whole weigh in the defendant’s favor. See id.,
561 (concluding that prosecutor’s improprieties vio-
lated defendant’s right to due process when ‘‘the only
consideration that weighs in favor of the state is defense
counsel’s failure to object to all but one of the claimed
improprieties’’). Mariani’s reference to a fact not in evi-
dence was in direct response to a similar statement by
defense counsel. Mariani’s other improper statements
about the police witnesses, however, were not invited.
Nonetheless, the improprieties occurred in rebuttal
argument and were not frequent when viewed in the
context of the entire closing argument.
Although we are troubled by Mariani’s improper
vouching for the officers’ credibility in tandem with
the suggestion that the officers’ hard work imposed
an attendant duty on the jury to credit the officers’
testimony given the importance of the officers’ testi-
mony to the case, the trial court gave a specific instruc-
tion to the jury regarding these witnesses. Specifically,
the court pointed to the testimony of the officers, under-
scored that a police officer’s testimony is not entitled
to any special weight, and directed the jury to determine
the credibility of the officers in the same way and by
the same standards as it evaluated other witnesses.
Finally, the state’s evidence was relatively strong, and
the defendant’s theory that the officers had planted the
pills on him was simply not credible in light of the
circumstances. The pills found on the defendant’s per-
son bore identical markings to those he previously had
sold, the plastic bag found on the defendant was not
the one containing the largest quantity of pills, and the
defendant already was subject to an arrest warrant on
multiple felony offenses. Accordingly, we conclude that
the defendant was not deprived of a fair trial.
The defendant nonetheless asks this court to exercise
its supervisory authority to order a new trial because
Mariani’s improper statements in the present case are
part of a larger, persistent pattern of improprieties by
him. As the state points out, however, the Appellate
Court recently took that very action in reversing a con-
viction obtained by Mariani when the improprieties did
not rise to the level of a due process violation. See State
v. Santiago, 143 Conn. App. 26, 47, 66 A.3d 520 (2013)
(‘‘Mariani knew or should have known that his com-
ments exceeded the proper bounds of argument, and
the similarity of the statements that he made here to
those that previously were deemed improper by this
court or our Supreme Court indicates that the miscon-
duct was deliberate. Mariani’s misconduct was typical
of a larger pattern of misconduct that is not likely to
be corrected absent extreme measures.’’). The state has
not appealed from that judgment. The members of this
court have every reason to expect that the extraordinary
action by the Appellate Court with respect to Mariani’s
conduct in Santiago will serve its clearly intended pur-
pose. Therefore, we decline to take such an extraordi-
nary action in the present case in the interests of justice.
See State v. Payne, 260 Conn. 446, 450–51, 797 A.2d
1088 (2002) (explaining extraordinary circumstances
justifying exercise of supervisory authority to reverse
conviction in absence of constitutional violation).
IV
In light of our conclusion in part II of this opinion,
the defendant is entitled to a judgment of acquittal on
his conviction of possession of an amphetamine-type
substance with intent to sell within 1500 feet of a school.
The defendant was sentenced to a three year term of
imprisonment on that offense, to be served consecutive
to his sentence for his conviction of possession of an
amphetamine-type substance with intent to sell. ‘‘Pursu-
ant to [the aggregate package theory of sentencing], we
must vacate a sentence in its entirety when we invali-
date any part of the total sentence. On remand, the
resentencing court may reconstruct the sentencing
package or, alternatively, leave the sentence for the
remaining valid conviction or convictions intact. . . .
Thus, we must remand this case for resentencing on
the [remaining] count[s] on which the defendant stands
convicted.’’ (Citation omitted.) State v. Miranda, 274
Conn. 727, 735 n.5, 878 A.2d 1118 (2005).
The judgment is reversed only with respect to the
defendant’s conviction of possession of an amphet-
amine-type substance within 1500 feet of a school and
the case is remanded with direction to render judgment
of acquittal on that charge and to resentence the defen-
dant on the remaining charges; the judgment is affirmed
in all other respects.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA, EVELEIGH and ROBINSON, Js., concurred.
1
The defendant was also convicted of interfering with an officer in viola-
tion of General Statutes § 53a-167a. The defendant does not challenge his
conviction of that offense.
2
The defendant appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-2.
3
Ecstasy is the street name for a pill containing an amphetamine-type sub-
stance.
4
At the suppression hearing, Ponzillo testified that, once the defendant
was arrested, he was ‘‘maybe two to three feet’’ away from the opening of
the closet. Rivera estimated that the defendant was at least seven feet away
from the back of the closet.
5
Although Pinto’s testimony at the suppression hearing was vague, he
testified at trial that he did not wait to see that the defendant was secured
but rather began to search the closet as soon as the defendant was extricated
from it. Rivera testified that he began to search after the defendant was hand-
cuffed.
6
In State v. Fletcher, supra, 63 Conn. App. 481–82, the Appellate Court
concluded that the search of a closet located within four feet of a handcuffed
defendant was a lawful search incident to arrest. In affirming the trial court’s
decision denying the defendant’s motion to suppress the narcotics and guns
found in the closet, the Appellate Court concluded that the distance between
the defendant and the closet did not suggest that ‘‘it would have been
physically impossible’’ for the defendant to reach inside the closet. Id. The
Appellate Court concluded that it was irrelevant that the defendant was
handcuffed because ‘‘it [was] not inconceivable that he may have grabbed
for a gun . . . .’’ (Internal quotation marks omitted.) Id., 482. That opinion
does not indicate whether the defendant’s hands had been cuffed in front
of or behind his body, or the number of officers guarding the defendant
during the search.
7
The court imposed the following sentence: a fifteen year term of imprison-
ment on count one, possession of an amphetamine-type substance with
intent to sell by a person who is not drug-dependent in violation of § 21a-
278 (b); a three year term of imprisonment on count two, possession of an
amphetamine-type substance with intent to sell within 1500 feet of a school
in violation of § 21a-278a (b), to be served consecutive to count one; and
a term of one year imprisonment on count three, interfering with an officer
in violation of General Statutes § 53a-167a, to be served concurrent to the
first count.
8
In Chimel v. California, supra, 395 U.S. 763, the United States Supreme
Court held that it is ‘‘reasonable for [an] arresting officer to search the
person arrested in order to remove any weapons that the latter might seek
to use in order to resist arrest or effect his escape,’’ as well as ‘‘to search
for and seize any evidence on the arrestee’s person in order to prevent its
concealment or destruction.’’ The court further held that it is reasonable
for arresting officers to search ‘‘the area into which an arrestee might reach
in order to grab a weapon or evidentiary items’’ because a ‘‘gun on a table
or in a drawer in front of one who is arrested can be as dangerous to the
arresting officer as one concealed in the clothing of the person arrested.’’
Id. But the court cautioned that a warrantless search incident to arrest is
only permissible ‘‘where the weapon or evidence is on the accused’s person
or under his immediate control.’’ (Internal quotation marks omitted.) Id., 764.
9
In Arizona v. Gant, supra, 556 U.S. 335, the defendant was arrested for
driving with a suspended license, and after he was handcuffed and locked
in the back of a police car, officers searched his car and found cocaine in
the pocket of a jacket in the backseat. Relying on Chimel, the court held
that a search of a vehicle incident to arrest is only permissible when the
arrestee is unsecured and within reaching distance of the passenger compart-
ment at the time of the search; id., 343; and that ‘‘[i]f there is no possibility
that an arrestee could reach into the area that law enforcement officers
seek to search, [the] justifications for the search-incident-to-arrest exception
are absent and the rule does not apply.’’ Id., 339.
10
The defendant further contends that courts have used certain factors
to determine what constitutes an area within the defendant’s immediate
control. These factors are: ‘‘(1) the distance between the arrestee and the
place searched; (2) whether the arrestee was handcuffed or otherwise
restrained; (3) whether police were positioned so as to block the arrestee
from the area searched; (4) the ease of access to the area itself; and (5) the
number of officers.’’ (Internal quotation marks omitted.) State v. LaMay,
140 Idaho 835, 838, 103 P.3d 448 (2004).
11
Specifically, the state points out that the defendant in Gant had no
known violent history, he calmly approached the officers when asked to
do so, he was arrested ten to twelve feet from the car the officers searched,
and the officers waited to search the vehicle until after the defendant had
been handcuffed and placed in the back of a guarded police cruiser. By
contrast, the state points out that in the present case: (1) the officers were
looking to serve warrants on a violent felon; (2) the defendant was known
to have used weapons in the recent and distant past, as evidenced by his
actions underlying a prior manslaughter conviction and in a recent robbery;
(3) the defendant was located in a small, dark closet within a small bedroom;
(4) the defendant had hid to avoid detection; (5) the defendant pushed the
officers as they tried to pull him out of the closet; (6) the defendant was
less than one foot from the closet door entrance when the search first
commenced; and (7) the closet was searched within seconds of the defendant
being handcuffed and placed on the floor.
12
We also recognize that in light of the dangerousness associated with
custodial arrests, courts must be careful in second-guessing officers’ judg-
ments regarding whether an area is within an arrestee’s immediate control
and whether there is some possibility that an arrestee might reach that area
to obtain a weapon. See Washington v. Chrisman, 455 U.S. 1, 7, 102 S. Ct.
812, 70 L. Ed. 2d 778 (1982) (‘‘[e]very arrest must be presumed to present
a risk of danger to the arresting officer’’); United States v. Shakir, 616 F.3d
315, 319 (3d Cir.) (‘‘where, in the heat of an arrest, an officer concludes
that a particular item is within the arrestee’s grasp, courts are extremely
reluctant to subsequently determine that the officer’s conclusion was unrea-
sonable and thereby suppress whatever evidence may have been found’’
[internal quotation marks omitted]), cert. denied, U.S. , 131 S. Ct.
841, 178 L. Ed. 2d 571 (2010); United States v. Lyons, 706 F.2d 321, 330
(D.C. Cir. 1983) (‘‘[c]ustodial arrests are often dangerous; the police must act
decisively and cannot be expected to make punctilious judgments regarding
what is within and what is just beyond the arrestee’s grasp’’).
13
Compare Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001) (lack
of accessibility at time of search does not invalidate search, so long as
arrestee had item in his immediate control ‘‘near the time of his arrest’’),
United States v. Clemons, United States Court of Appeals, Docket No. 95-
5162 (4th Cir. December 11, 1995) (upholding search of luggage as incident
to arrest when arrestee was secured at time of arrest and could not access
luggage), United States v. Turner, 926 F.2d 883, 888 (9th Cir. 1991) (uphold-
ing search of room incident to arrest when defendant was handcuffed and
removed from room before search), and United States v. Palumbo, 735 F.2d
1095, 1097 (8th Cir. 1984) (search incident to arrest is ‘‘not constrained
because the arrestee is unlikely at the time of arrest to actually reach into
that area’’), with United States v. Myers, 308 F.3d 251, 267 (3d Cir. 2002)
(search invalid because arrestee would have had to possess qualities of
acrobat or Houdini to access bag when handcuffed behind back, lying face-
down on floor and ‘‘covered’’ by two armed police officers); United States
v. Johnson, 16 F.3d 69, 71–72 (5th Cir.) (invalidating search of briefcase
because, although arrestee was not handcuffed, briefcase was not in arrest-
ee’s immediate control when numerous officers stood between arrestee and
briefcase), decision clarified on rehearing, 18 F.3d 293 (1994), and United
States v. Lyons, 706 F.2d 231, 330 (D.C. Cir. 1983) (‘‘[t]o determine whether
a warrantless search incident to an arrest exceeded constitutional bounds,
a court must ask: was the area in question, at the time it was searched,
conceivably accessible to the arrestee—assuming that he was neither an
acrobat [nor] a Houdini ?’’ [footnote omitted; internal quotation marks omit-
ted]), quoting United States v. Mapp, 476 F.2d 67, 80 (2d Cir. 1973).
The concurring justice cites several cases wherein courts held that a
search was valid even when the arrestee was handcuffed or otherwise unable
to access the searched area. Not only do those cases predate Gant by several
decades, they only further demonstrate that, while some courts have found
that a search is valid even when the arrestee is unable to access the area
at the time of the search, others have come to the opposite conclusion.