State v. Walton ( 2017 )

 STATE OF CONNECTICUT v. ANTOINE WALTON
(AC 38588)
Keller, Prescott and Flynn, Js.
Syllabus
Convicted, after a jury trial, of the crimes of robbery in the first degree,
larceny in the second degree and assault on an elderly person in the
third degree, the defendant appealed to this court. The defendant’s
conviction stemmed from an incident in which he robbed the victim of
her purse in a store parking lot. The victim and two eyewitnesses gave
statements to the police at the scene and later to detectives at the
police station. During his closing argument to the jury, defense counsel
suggested that the investigating detectives had conformed the state-
ments given by the witnesses at the police station to make them consis-
tent with respect to the witnesses’ description of the defendant. In
response, the prosecutor argued in his rebuttal closing argument that,
if the detectives had wanted to fabricate evidence and to testify falsely,
they could have done so in a manner more favorable to the state by
stating that the defendant had told them that he had committed the
subject crimes. On appeal, the defendant claims that the prosecutor’s
comments constituted improper vouching and misstatements of the law
because they created the false impression that there was nothing to
impede the detectives, other than their own honesty, from testifying
falsely, when substantial legal hurdles, such as the defendant’s fifth
amendment right against self-incrimination, precluded the detectives
from fabricating their testimony. Held that, in light of binding precedent
arising out of similar facts, the prosecutor’s comments were not
improper nor did they misstate the law, as a prosecutor may appeal to
the common sense of jurors by arguing that a witness could have told
a more damning lie than the witness testified to at trial, and the comments
here were a proper request for the jurors to use their common sense
and to draw reasonable inferences from the evidence in assessing the
credibility of the detectives; moreover, the prosecutor’s hypothetical
embraced a plethora of scenarios in which the fifth amendment was
not implicated, and, therefore, the amendment was not a barrier to the
detectives’ ability to fabricate a more inculpatory confession by the
defendant at trial.
Argued May 18—officially released August 22, 2017
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the first degree, larceny in the
second degree, and assault on an elderly person in the
third degree, brought to the Superior Court in the judi-
cial district of Waterbury and tried to the jury before
Crawford, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Matthew C. Eagan, assigned counsel, with whom, on
the brief, was James P. Sexton, assigned counsel, for
the appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Don E. Therkildsen, senior assistant
state’s attorney, for the appellee (state).
Opinion
FLYNN, J. The defendant, Antoine Walton, appeals
from the judgment of conviction, rendered after a jury
trial, of robbery in the first degree in violation of General
Statutes § 53a-134 (a) (4), larceny in the second degree
in violation of General Statutes § 53a-123 (a) (3), and
assault on an elderly person in the third degree in viola-
tion of General Statutes § 53a-61a (a). On appeal, the
defendant claims for the first time that the prosecutor
engaged in impropriety and misstated the law during
rebuttal closing argument when he argued to the jury
that, had the investigating detectives wanted to fabri-
cate evidence, they would have done so in a manner that
was more favorable to the state’s case. The prosecutor
made these remarks in response to the defendant’s sug-
gestion during his closing argument that certain detec-
tives had conformed witness statements concerning the
height, footwear and other identifying characteristics
of the defendant to make them consistent. We conclude
that because binding precedent arising out of similar
facts controls, in light of it, the defendant has failed to
show that the prosecutor’s remarks were improper. We
agree with the state that the prosecutor did not misstate
the law, because he did not make a statement of the
law, at all, and we accordingly affirm the judgment of
the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are pertinent to this
appeal. On January 12, 2013, the defendant snatched
the purse of the victim, Mary Cardella, as she was walk-
ing into the Rite Aid store on Fairfield Avenue in Water-
bury, knocking her down in the process. The store
manager, Jason Simpson, went outside to assist the
victm, but stopped short of the altercation when the
defendant threatened to shoot him. After taking the
purse, the defendant then ran off behind Rite Aid. Mau-
reen Giordano, who had witnessed the incident, began
following the defendant until he threatened to shoot
her. Simpson also followed the defendant, and saw him
enter building eight of 222 Fairfield Avenue, an apart-
ment complex directly behind Rite Aid.
Police arrived on the scene and took statements from
Cardella, Simpson and Giordano. At the same time, a
state police K-9 officer tracked the defendant from the
scene of the incident to the lower level of building
eight of 222 Fairfield Avenue, where there was a single
apartment. Waterbury Police obtained consent to
search the apartment from its occupant, the defendant’s
girlfriend. Inside, they found the defendant’s state iden-
tification card.
Cardella, Simpson and Giordano later gave state-
ments at the police department. Both Cardella and
Simpson positively identified the defendant as the rob-
ber in photographic arrays that detectives prepared.
Meanwhile, the defendant’s girlfriend alerted him to
the search and that the police were looking for him.
Thereafter, the defendant voluntarily went to the police
station where he was arrested.
The defendant was charged with robbery in the first
degree, larceny in the second degree and assault on
an elderly person in the third degree. During closing
arguments at trial, defense counsel stated: ‘‘In [Gior-
dano’s] 911 call, she gave a physical description . . .
of a tall, black male, black hat, brown, suede jacket
and blue jeans . . . and work boots. . . . Now, forty
minutes later she reports to the Waterbury Police
Department and that physical description changes . . .
to black male with a black hoodie. . . . Now, this black
hoodie and the physical description are only consistent
when these witnesses get to the police department and
their statements are typed up by [the detectives]. Their
description on the scene is totally different than what
is eventually written on that paper and that they signed
at the end of the day. How does she go from black hat,
brown suede jacket, very specific, blue jeans and work
boots to just a black hoodie? And the answer is, those
same two detectives . . . .
‘‘Now, is this a coincidence that all these physical
descriptions given on the scene are then changed to be
consistent in the police department? They’re changed
to be consistent with the physical description of [the
defendant]. The first description they give on the scene
doesn’t match [the defendant], but they made sure that
by the time they got to that police station that physical
description described [the defendant].
‘‘Jason Simpson’s 6 foot 4, 175 pound black male with
black jeans, black hoodie and black sneakers on the
scene becomes a brown skinned black male around 30
[years old] with a medium build at 6 feet tall.
‘‘Maureen Giordano’s . . . tall, black male, black
hat, brown suede jacket, blue jeans and work boots
becomes a dark skinned black male about 30 years old,
medium build, around 6 feet wearing a black hoodie.
‘‘Once again, totally different description given on
the scene made consistent at the police department by
. . . the detectives.
‘‘Mary Cardella’s testimony, by the way, not surpris-
ingly, in her statement, also taken by [the detectives],
black hoodie, 6 feet tall. Consistent with the other two
witnesses whose description was changed.’’
In response to this argument, the prosecutor stated
in his rebuttal: ‘‘Now, if [the detectives] had this grand
conspiracy and they want to put all this in these state-
ments all they have to do is sit up there when they
testify and say, hey, [the defendant] was at the police
department, he told me he did it. If they want to lie to
you, there’s a good lie. Why wouldn’t they do that?
Think about that when you judge [their] credibility. All
they have to do is sit there and say, he told me he did
it.’’ Defense counsel did not object to this statement.
The jury returned a verdict of guilty on all counts.
The court imposed a sentence of eighteen years impris-
onment, execution suspended after twelve years, fol-
lowed by five years of probation. This appeal followed.
On appeal, the defendant claims that the prosecutor
engaged in impropriety and misstated the law during
rebuttal closing argument when he argued to the jury
that, had the investigating detectives wanted to fabri-
cate evidence, they would have done so in a manner that
was more favorable to the state’s case. The prosecutor
made these remarks in response to the defendant’s sug-
gestion during his closing argument that certain detec-
tives had conformed witness statements concerning the
height, footwear and other identifying characteristics of
the defendant to make them consistent. The defendant
asserts that the remarks were improper vouching and
misstatements of the law because they created the false
impression that ‘‘there was nothing stopping the detec-
tives, other than their own honesty, from testifying that
‘he told me he did it,’ ’’ when in fact ‘‘substantial legal
hurdles,’’ such as the defendant’s fifth amendment
rights against self-incrimination, precluded the detec-
tives from fabricating such testimony. We disagree.
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [impropriety] is
[impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question . . . .’’ (Internal quotation marks
omitted.) State v. Stevenson, 269 Conn. 563, 572, 849
A.2d 646 (2004).
‘‘[I]t is not improper for the prosecutor to comment
upon the evidence presented at trial and to argue the
inferences that the jurors might draw therefrom . . . .
We must give the jury the credit of being able to differen-
tiate between argument on the evidence and attempts
to persuade them to draw inferences in the state’s favor,
on one hand, and improper unsworn testimony, with
the suggestion of secret knowledge, on the other hand.’’
(Citations omitted; internal quotation marks omitted.)
Id., 583. ‘‘Furthermore, prosecutors are not permitted
to misstate the law. . . . [W]hen a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show . . .
that the remarks were improper . . . .’’ (Internal quota-
tion marks omitted.) State v. Otto, 305 Conn. 51, 77, 43
A.3d 629 (2012).
Turning to the present case, we conclude that the
prosecutor’s remarks during rebuttal argument do not
constitute an impropriety. Prosecutors may appeal to
the common sense of jurors by arguing that a witness
could have told a more damning lie than she testified
to at trial. See State v. Long, 293 Conn. 31, 46–47, 975
A.2d 660 (2009). In Long, the defendant was convicted
based on allegations that he had touched the victim
inappropriately. See id., 33–35. During closing argu-
ments, the prosecutor stated: ‘‘If you are going to make
something up, why not just say he went all the way to
sexual intercourse? He made me perform oral sex on
him. He made me do this, he made me do that, he made
me do this. . . . If you are going to lie, why not just
keep on lying and lying and lying?’’ (Emphasis omitted;
Internal quotation marks omitted.) Id., 46. Our Supreme
Court found no prosecutorial impropriety, stating:
‘‘[T]his argument is a permissible appeal to the common
sense of the jurors on the basis of the very limited and
specific nature of [the victim’s] accusations. It would
be reasonable for the jurors to infer that, if [the victim]
had a motive to lie due to her desire to harm the defen-
dant, her accusations would be less specific and would
involve more severe conduct. Of course, this is not the
only reasonable inference that could be drawn from
the nature of the allegations, but it is based on the
evidence, and it would be reasonable for the jurors to
draw such an inference.’’ (Emphasis omitted.) Id.,46–47.
Likewise, our Supreme Court has determined that a
prosecutor’s remark that a witness who chose to lie
would have told a better lie is not improper vouching.
See State v. Ciullo, 314 Conn. 28, 42–43, 100 A.3d 779(2014). In Ciullo, the prosecutor stated: ‘‘Common
sense tells us that there is not a conspiracy between
[the witnesses] to give false testimony. If people wanted
to conspire to give false testimony, they would have
made up a little bit better of a story than that.’’ (Internal
quotation marks omitted.) Id., 42 n.12. Our Supreme
Court held that a prosecutor’s remark that if the wit-
nesses were lying, the witnesses could have told a better
lie did not ‘‘convey [the prosecutor’s] personal opinion
of the credibility of the witnesses; instead, the prosecu-
tor’s statements . . . are reasonable inferences the
jury could have drawn from the evidence adduced at
trial.’’ (Emphasis omitted.) Id., 43.
Similar to the arguments at issue in Long and Ciullo,
the prosecutor in the present case remarked: ‘‘[I]f [the
detectives] had this grand conspiracy . . . [a]ll they
have to do is . . . say, hey, [the defendant] was at the
police department, he told me he did it. If they want to
lie to you, there’s a good lie.’’ We discern no meaningful
difference between the comments the prosecutor made
here and those that our Supreme Court did not find
improper in Long and Ciullo. Instead, the prosecutor’s
remarks were a proper request for the jurors to use
their common sense and draw reasonable inferences
in assessing credibility.
We reject the defendant’s attempts to distinguish
Long and Ciullo from the present case on the ground
that the witnesses here are police officers. Although
our appellate courts have not addressed the question
of whether a different rule applies to police officers,
multiple federal courts of appeals have failed to make
such a distinction. See United States v. Garcia, 758
F.3d 714, 723 (6th Cir. 2014), cert. denied, U.S. ,
135 S. Ct. 498, 190 L. Ed. 2d 374 (2014); United States
v. Isler, 429 F.3d 19, 28 (1st Cir. 2005), cert. denied sub
nom. Brown v. United States, 547 U.S. 1022, 126 S.
Ct. 1591, 164 L. Ed. 2d 303 (2006); United States v.
Wilkerson, 411 F.3d 1, 8 (1st Cir. 2005); United States
v. Figueroa-Encarnacion, 343 F.3d 23, 28–29 (1st Cir.
2003), cert. denied sub nom. Medina v. United States,
540 U.S. 1140, 124 S. Ct. 1130, 157 L. Ed. 2d 951 (2004).
Although not stating a general rule, we do not believe
any such distinction is warranted by the facts of this
case.
The defendant, however, claims that the prosecutor’s
remarks misstated the law because they failed to
explain that his fifth amendment right against self-
incrimination, and not just the detectives’ propensity
to testify truthfully, could have precluded the admission
of his confession. This precise argument is not
addressed by any of the federal cases cited previously;
however, the fifth amendment protections afforded by
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), only attach when an
individual is both in custody and subject to interroga-
tion. See Rhode Island v. Innis, 446 U.S. 291, 298–302,
100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). Thus, the prose-
cutor’s hypothetical embraced a plethora of scenarios
in which the fifth amendment was not implicated and,
thus, not a barrier to the detectives’ ability to fabricate
a more inculpatory confession at trial. Even though
there are some scenarios in which the admission of
such a confession may be suppressed on Miranda
grounds, this mere possibility does not transform the
prosecutor’s otherwise proper appeal to the jurors’
common sense into improper argument. Nor did it
require listing of various hypothetical factual scenarios
and legal hurdles pertinent to those facts that might
impede admission of any inculpatory statements into
evidence that the police might have fabricated.
We therefore conclude that Long and Ciullo foreclose
the defendant’s claim that the prosecutor’s challenged
remarks were improper. Because there was no impro-
priety, we do not address the defendant’s claim of harm
to his due process rights.
The judgment is affirmed.
In this opinion the other judges concurred.