State v. Frasier , 169 Conn. App. 500 ( 2016 )

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STATE OF CONNECTICUT v. LEVARR FRASIER
(AC 38625)
DiPentima, C. J., and Keller and Prescott, Js.
Argued September 16—officially released November 29, 2016
(Appeal from Superior Court, judicial district of New
Haven, O’Keefe, J.)
Emily Wagner, assistant public defender, for the
appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Michael Pepper, senior assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Levarr Frasier,
appeals from the judgment of conviction, rendered after
a jury trial, of manslaughter in the first degree with a
firearm in violation of General Statutes § 53a-55a,1
assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (5),2 and carrying a pistol without a
permit in violation of General Statutes § 29-35.3 On
appeal, the defendant claims that (1) the court improp-
erly instructed the jury on accessorial liability and (2)
he was denied his right to a fair trial due to prosecutorial
impropriety. We affirm the judgment of the court.
The jury reasonably could have found the following
facts. Prior to the night in question, Adrian Redmond
and Travis James had several altercations regarding
the mother of Redmond’s child. James and the child’s
mother were dating, and Redmond took offense to
James ‘‘going around telling people about some
[explicit] photos that she had sent [James].’’ In addition,
James believed that Redmond and the child’s mother
still had an ongoing relationship. Redmond confronted
James and requested that he stop publicizing the photo-
graphs. In response, James threatened Redmond, warn-
ing him that ‘‘I’ll have you killed’’ and ‘‘just wait here
and you’ll see. I’ll have you shot right now because I
have somebody who wants you dead anyway.’’
William Brown, a longtime friend of Redmond, was
often with Redmond during the disputes between James
and him. In the late evening of January 11, 2011, Brown
drove Redmond to the Crown Fried Chicken restaurant
on Dixwell Avenue in New Haven to get something to
eat. While Brown and Redmond were parked at a corner
near the restaurant, James and the defendant exited
the restaurant, and James approached the driver’s side
window of Brown’s vehicle. In addition to his threats
to Redmond, James had been leaving threatening voice
messages on Brown’s phone because James believed
Brown was ‘‘playing both sides of the fence’’ in his
dispute with Redmond. James and Brown then engaged
in a heated argument, and Brown demanded that James
stop leaving threatening voice messages on his phone.
At one point, James said that he was ‘‘at the end
of his rope’’ and did not ‘‘care about life anymore.’’
Redmond attempted to diffuse the argument and stated
that ‘‘it’s not that serious,’’ and sought to settle their
differences at another time. James remained furious
and walked away from the vehicle toward the defen-
dant. After a brief conversation, James and the defen-
dant then returned to the driver’s side of Brown’s
vehicle. James again mentioned that Brown was ‘‘play-
ing both sides of the fence,’’ and directed the defendant
to kill both of them. The defendant then pulled out a
firearm and opened fire.
Redmond was shot in the left elbow and managed to
flee to a nearby alley. Brown also was able to flee the
vehicle but was shot and collapsed on the street. Once
the defendant stopped shooting, he and James fled.
Police arrived at the scene shortly after the shooting
and found Brown lying unconscious on the street.
Brown was transported to the Hospital of St. Raphael
where he spent a week on life support before he died
from the gunshot wounds. Redmond was transported
to Yale-New Haven Hospital and eventually recovered
from his injuries.
At the hospital, Redmond spoke to Detective Wayne
Bullock regarding the shooting. Redmond identified
James and the defendant, by their street names, as those
responsible for the attack and named the defendant as
the shooter.4 Bullock followed up on this information
and learned that James and the defendant were known
to associate with one another and were frequently in
the neighborhood where the shooting occurred.
The defendant was arrested three days after the
shooting by Officer John Palmer. After voluntarily waiv-
ing his Miranda rights, the defendant made several
statements to police indicating that he was with George
White at White’s home at the time of the shooting, where
he remained until he walked home at 2 a.m. on January
12. Bullock followed up with White who provided a
different story.5 Bullock then confronted the defendant
with White’s account, but the defendant refused to
change his story.
Bullock conducted a second interview with White
approximately one month after the attack. During this
interview, White provided a different account from his
earlier one and explained that after he got out of work
at 10 p.m. on January 11, he picked up the defendant,
they purchased marijuana, and then went back to his
home. White stated that the defendant ‘‘didn’t seem
himself’’ and that the defendant told White either ‘‘I
think I shot somebody’’ or ‘‘I shot someone tonight.’’
According to White, the defendant stayed at his home
until the following morning.
The defendant subsequently was charged, solely as
the principal, with murder, assault in the first degree,
and carrying a pistol without a permit and was tried
by a jury. The jury was unable to reach a verdict, and
the court declared a mistrial. The defendant was tried
again and charged, as a principal or an accessory, with
murder, assault in the first degree, and carrying a pistol
without a permit. The jury acquitted the defendant of
murder and convicted him of the lesser included offense
of manslaughter in the first degree with a firearm,
assault in the first degree, and carrying a pistol without
a permit. The court rendered judgment accordingly and
sentenced the defendant to forty years of incarceration.
This appeal followed.
I
The defendant first claims that the court improperly
instructed the jury on the doctrine of accessorial liabil-
ity. He maintains that the court’s instructions were
improper in three ways, which we analyze in turn: (1)
that the court’s ‘‘intentionally aid’’ instruction was mis-
leading; (2) that the court’s instruction that it was ‘‘not
necessary to prove that the defendant was actually pre-
sent or actively participated’’ was misleading; and (3)
that ‘‘the court erroneously merged all of the offenses
into a single instruction.’’ We disagree.6
As a preliminary matter, we note that the defendant
neither filed a written request to charge nor objected
to the court’s instructions as given. ‘‘It is well estab-
lished that [t]his court is not bound to review claims
of error in jury instructions if the party raising the
claim neither submitted a written request to charge
nor excepted to the charge given by the trial court.’’
(Internal quotation marks omitted.) State v. Serrano,
91 Conn. App. 227, 244, 880 A.2d 183, cert. denied, 276
Conn. 908, 884 A.2d 1029 (2005). The defendant now
seeks review of his claim pursuant to State v. Golding,
213 Conn. 233, 239–40, 587 A.2d 823 (1989).7 ‘‘Under
Golding, a defendant may prevail on an unpreserved
claim only if the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Tarver, 166 Conn. App. 304, 321, 141 A.3d 940,
cert. denied, 323 Conn. 908, A.3d (2016).
We will review the defendant’s claim here because
the record is adequate for review and the defendant’s
claim that the court improperly instructed the jury is
of ‘‘constitutional dimension.’’ State v. Hines, 89 Conn.
App. 440, 455, 873 A.2d 1042 (claims of improper jury
instructions ‘‘as to an element of a charged offense is
of constitutional dimension’’; thus Golding review is
appropriate), cert. denied, 275 Conn. 904, 882 A.2d 678(2005). We conclude however, that the defendant has
failed to demonstrate the existence of a constitutional
violation that deprived him of a fair trial.8
At the conclusion of the court’s instruction on the
elements of the charged offenses, the court stated that
‘‘[a]ll the language that I’ve given you up to this point
has been about being convicted as a principal, the
shooter. . . . This is language which pertains to
another theory of responsibility called accessory.’’ The
court defined an accessory as ‘‘[a] person acting with
the mental state required for the commission of an
offense, who solicits, requests, commands, importunes,
or intentionally aids another person to engage in con-
duct which constitutes [an] offense shall be criminally
liable for such conduct and may be prosecuted and
punished . . . as if he were the principal offender.’’
The court then outlined the requirements under Gen-
eral Statutes § 53a-8 (a) constituting criminal liability
as an accessory.9 Throughout the court’s accessory
instruction, it defined intent generally and iterated that
‘‘[i]ntentionally aid . . . means to act in any manner,
the conscious objective . . . of which is to assist, help,
or support. If the defendant did any of these things . . .
he is guilty of murder, assault in the first degree, or
any lesser included offenses, depending on . . . what
you determined, just as though he had directly commit-
ted it or participated in the commission of those
crimes.’’
The court further instructed the jury that ‘‘[t]o estab-
lish the guilt of a defendant as an accessory for assisting
in the criminal act of another, the State must prove
criminality of intent and community of unlawful pur-
pose. That is, for the defendant to be guilty as an acces-
sory, it must be established that he acted with the
mental state necessary to commit murder, any of the
lesser included offenses, assault in the first degree or
any of the lesser included offenses, and that in further-
ance of the crime, he solicited, requested, commanded,
importuned, or intentionally aided the principal to com-
mit murder, assault in the first degree, or any of the
lesser included offenses. Evidence of mere presence as
an inactive companion or passive acquiescence or the
doing of innocent acts which in fact aid in the commis-
sion of a crime is insufficient to find the defendant
guilty as an accessory under the statute. Nevertheless,
it is not necessary to prove that the defendant was
actually present or actively participated in the actual
commission of the crime . . . . For you to find the
defendant guilty of this charge . . . you must unani-
mously find that the State has proven all the elements
of whatever crime you find proven beyond a reasonable
doubt. If you conclude the defendant is guilty as a princi-
pal or as an accessory, you do not need to be unanimous
regarding whether you believe he was a principal or
accessory as long as all twelve jurors agree that at least
one method, principal or accessory, has been proven
beyond a reasonable doubt.’’
At the conclusion of its charge, the court advised the
jury to send a note to the court if it had any questions.
The court stated that ‘‘[i]f you send me a lot of notes,
that’s okay. If you don’t send me any notes, that’s fine
too. . . . By explaining the note process, I’m not trying
to encourage or discourage you from sending notes. If
you have a question put it in a note. I’ll read it [and]
answer it if I can.’’ The jury was also aware that its
questions should ‘‘be as specific as possible.’’
During deliberations, the jury sent a note to the court
requesting clarification on accessorial liability. The
court answered the question by stating that ‘‘[a]ccesso-
rial liability doesn’t create a new count or a new crime.
. . . The State is entitled to . . . put in . . . a differ-
ent theory of liability [other than as principal]. . . .
[T]hey are [also] entitled to say to the jury, we’ve
charged this defendant as the shooter, but we also want
you to consider the theory . . . where . . . if he is not
the shooter, he intentionally aided the shooter. . . .
Keep in mind, that to be legally responsible as an acces-
sory, you have to have the same intent as the principal,
as the shooter.’’
In response to the jury’s question, the court provided
an example of accessorial liability. The court stated
‘‘[i]f you innocently give a ride to someone who is going
to rob a bank, and they go in and rob a bank, and . . .
you don’t know what they’re [going to do] . . . you
are not guilty of bank robbery. If you’re in with the
bank robber and have the same intent to rob the bank
and drive the car, you’re as responsible as the . . .
person who went inside. . . . The important part is
that . . . [y]ou have to have the same intent as the
. . . principal if you’re the accessory. . . . Focus on
the written instructions . . . that I gave you. Those
include the elements, which of course have to be proven
beyond a reasonable doubt.’’
As previously noted, we review the defendant’s
unpreserved claims of instructional error under Gold-
ing. ‘‘[I]n reviewing a constitutional challenge to the
trial court’s instruction, we must consider the jury
charge as a whole to determine whether it is reasonably
possible that the instruction misled the jury. . . . The
test is whether the charge as a whole presents the case
to the jury so that no injustice will result. . . . We will
reverse a conviction only if, in the context of the whole,
there is a reasonable possibility that the jury was misled
in reaching its verdict. . . . A jury instruction is consti-
tutionally adequate if it provides the jurors with a clear
understanding of the elements of the crime charged, and
affords them proper guidance for their determination of
whether those elements were present. . . . An instruc-
tion that fails to satisfy these requirements would vio-
late the defendant’s right to due process of law as
guaranteed by the fourteenth amendment to the United
States constitution and article first, § 8, of the Connecti-
cut constitution. . . . The test of a charge is whether
it is correct in law, adapted to the issues and sufficient
for the guidance of the jury. . . . The primary purpose
of the charge is to assist the jury in applying the law
correctly to the facts which they might find to be estab-
lished. . . . The purpose of a charge is to call the atten-
tion of the members of the jury, unfamiliar with legal
distinctions, to whatever is necessary and proper to
guide them to a right decision in a particular case.’’
(Internal quotation marks omitted.) State v. Johnson,
165 Conn. App. 255, 288–89, 138 A.3d 1108, cert. denied,
322 Conn. 904, 138 A.3d 933 (2016). ‘‘As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper.’’ (Internal quota-
tion marks omitted.) Id., 288.
A
The defendant first argues that the jury was misled
by the court’s ‘‘intentionally aid’’ instruction. Specifi-
cally, the defendant argues that the jury was permitted
to convict the defendant ‘‘if he engaged in any conduct
with the intent [necessary for the] offenses, rather than
conduct that aids . . . .’’ This argument is perplexing.
The court explicitly stated that, to convict the defendant
as an accessory, ‘‘it must be established that he acted
with the mental state necessary to commit . . . [the
principal’s intended crime] and that in furtherance of
that crime, he solicited, requested, commanded, impor-
tuned, or intentionally aided the principal to commit’’
the crime. This language unequivocally refutes the
defendant’s argument. The court instructed the jury that
the intent for accessorial liability was distinct from
principal liability and that to convict the defendant as
an accessory, both levels of intent must be found.
The defendant also contends that the court’s instruc-
tion that ‘‘[i]ntentionally aid . . . means to act in any
manner, [with] the conscious objective . . . to assist,
help, or support,’’ lowered the state’s burden of proof
and eliminated the requirement that the defendant actu-
ally assist in the commission of the crime. We disagree.
Immediately preceding the court’s definition of
‘‘intentionally aid,’’ the court informed the jury of a
separate definition of intent that ‘‘[a] person acts inten-
tionally with respect to a result when his conscious
objective is to cause such result.’’ The court sought
to provide clarity among these distinct definitions and
stated that ‘‘[t]o establish the guilt of a defendant as
an accessory for assisting in the criminal act of another,
the State must prove criminality of intent and commu-
nity of unlawful purpose.’’ (Emphasis added.) The
court’s charge, viewed in its entirety, did not permit the
jury to convict the defendant as an accessory without
finding both levels of intent.
The defendant also takes issue with the court’s use
of the phrase ‘‘to act in any manner’’ when defining
‘‘intentionally aid.’’ The court’s use of that phrase is not
problematic. The court instructed that the defendant’s
conduct, to be guilty as an accessory, required the same
intent as the principal to accomplish the intended crime,
in addition to the intent to aid the principal. The court’s
later discussion of ‘‘intentionally aid’’ clarified that the
jury’s responsibility was to find that the defendant pos-
sessed two distinct levels of intent, not that the defen-
dant could act in any general manner and still be
culpable. The court’s instruction of ‘‘any manner’’ was
limited to the specific intent to ‘‘assist, help, or support,’’
in the context of ‘‘intentionally aiding’’ as an accessory.
In our view, the court’s instruction charged the jury
to find the defendant guilty as an accessory if his con-
duct was intended to ‘‘assist, help, or support’’ the prin-
cipal and that he also possessed the same intent as the
principal. In addition, the court read the statute aloud
to the jury and provided copies of the instructions con-
taining the elements and definitions of accessorial liabil-
ity, and clarified the meaning of accessorial liability at
the jury’s request. We thus disagree that there is any
reasonable possibility that the jury was misled.
B
Next, the defendant argues that, in light of the specific
facts of this case, the jury was misled by the court’s
instruction to the jury that ‘‘it is not necessary to prove
that the defendant was actually present or actively par-
ticipated in the actual commission of the crime of mur-
der, assault, or any of the lesser included offenses.’’
Specifically, the defendant argues that two particular
sentences within the court’s accessorial instruction are
‘‘flatly inconsistent’’ and that the jury was misled by
the statements. We disagree.
The challenged instruction provided that: ‘‘Evidence
of mere presence as an inactive companion or passive
acquiescence or the doing of innocent acts which in
fact aid in the commission of a crime is insufficient to
find the defendant guilty as an accessory under the
statute. Nevertheless, it is not necessary to prove that
the defendant was actually present or actively partici-
pated in the actual commission of the crime of murder,
assault, or any of the lesser included offenses.’’ The
defendant argues that the first sentence of the preceding
excerpt is inconsistent with the second sentence. Fur-
ther, the defendant argues that the second sentence
was misleading and confusing because, in this case, the
state was required to prove that the defendant was
present and actively participated in the commission of
the crime.
The first challenged statement instructed the jury,
in essence, that simply being present at the scene is
insufficient to find the defendant guilty as an accessory.
The second challenged statement, in contrast, identified
that accessorial liability does not require physical pres-
ence, so long as the accessory intentionally aided in the
commission of the crime and simultaneously possessed
the same intent as the principal. These statements,
when viewed in context, provide a helpful and illustra-
tive distinction between what constitutes accessorial
liability and what does not. The court further clarified
this concept when it provided the ‘‘bank robbery’’ exam-
ple following the jury’s questions.10
After examining the court’s instructions in their
entirety, the instructions were not misleading, but were
designed to assist the jury in understanding the concept
of accessorial liability. Before making the challenged
statements, the court had instructed the jury that the
defendant must have intentionally aided the principal in
the commission of the underlying crime. The challenged
statements then distinguished conduct that constitutes
accessorial liability and conduct that does not. The
defendant’s argument takes the challenged statements
out of context when in fact they appropriately described
the range of conduct that constitutes accessorial liabil-
ity. The challenged statements were intended to provide
a comprehensive example to ‘‘the meaning of a complex
legal concept’’; State v. Hines, 187 Conn. 199, 210, 445
A.2d 314 (1982); and that example was not an ‘‘unfair
statement of the law which it was offered to illustrate.’’
Id., 212–13. Accordingly, we conclude that the chal-
lenged statements were neither inconsistent nor mis-
leading.
C
Finally, the defendant argues that the court’s accesso-
rial liability instructions failed to properly ‘‘delineate
the intent and conduct’’ necessary to convict the defen-
dant as an accessory with respect to each charge and
as a result, reduced the state’s burden of proof and
erroneously merged the offenses. Specifically, the
defendant argues that the court’s singular accessorial
instruction that followed the charge on the specific
elements of the substantive offenses improperly permit-
ted the jury to convict the defendant as an accessory
with respect to a particular offense if it found he inten-
tionally aided the principal, but possessed an unrelated
intent regarding any of the underlying substantive
crimes for which he was charged. We disagree.
The court first instructed the jury on the elements of
each substantive offense and then gave the accessorial
liability instruction. The court instructed the jury that
to find the defendant guilty as an accessory ‘‘it must
be established that [the defendant] acted with the men-
tal state necessary to commit murder, any of the lesser
included offenses, assault in the first degree or any of
the lesser included offenses, and that in furtherance of
that crime, he solicited, requested, commanded, impor-
tuned, or intentionally aided the principal to commit
murder, assault in the first degree, or any of the lesser
included offenses.’’ The defendant argues that, for
example, this instruction allowed the jury to find the
defendant guilty of manslaughter if the jury found he
possessed the intent to cause serious physical injury,
but instead aided in the commission of assault.
Contrary to the defendant’s argument, the court was
clear throughout its instructions that it was necessary
to find that the defendant possessed the same intent
as the principal for each particular offense. The court
instructed the jury to ‘‘[k]eep in mind, that to be legally
responsible as an accessory, you have to have the same
intent as the principal, the shooter.’’ (Emphasis added.)
In our view, the court’s instructions were unambiguous
and neither diluted the state’s burden of proving the
defendant’s guilt nor misled the jury. Instead, the jury
was instructed that in order to convict the defendant,
he must have possessed the same intent as the principal,
in addition to the intent to intentionally aid the princi-
pal. The court also provided the jury with written copies
of the instructions that accurately stated the law of the
substantive charged offenses and accessorial liability.
Additionally, the court’s instruction to the jury that the
defendant act in ‘‘furtherance’’ of the underlying crime
exemplifies that it was necessary for the jury to find
that the defendant possessed the same intent as to the
principal’s underlying crime and that the defendant
acted with the intent to intentionally aid the principal
in the commission of that offense.
When viewed in their entirety, the court’s oral and
written instructions sufficiently enabled the jury to con-
sider each charged substantive offense because the
court separately described the necessary elements that
the state must prove beyond a reasonable doubt. The
court’s instructions did not merge all of the offenses
into a single instruction. Accordingly, the court’s
instructions were not improper.
II
The defendant also claims that he was denied a fair
trial due to prosecutorial impropriety. Specifically, he
argues that during closing arguments, the prosecutor
impermissibly (1) shifted the burden of proof to the
defendant and (2) misstated the evidence. We conclude
that there was no impropriety, and therefore do not
address the defendant’s claim that the alleged impropri-
eties violated his federal and state due process right to
a fair trial.
As a preliminary matter, we note that the defendant
did not preserve his claim by objecting at trial to the
challenged statements. However, ‘‘[o]nce prosecutorial
impropriety has been alleged . . . it is unnecessary for
a defendant to seek to prevail under State v. Golding
. . . and it is unnecessary for an appellate court to
review the defendant’s claim under Golding. . . . 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.’’ (Citation omitted; internal quotation
marks omitted.) State v. Fasanelli, 163 Conn. App. 170,
174, 133 A.3d 921 (2016).
A
The defendant first argues that the state ‘‘unfairly
shifted’’ the burden of proof to the defendant during
its closing and rebuttal argument. He asserts that the
prosecutor’s argument suggested to the jury that the
defendant was required to ‘‘produce a compelling’’
defense theory, thereby shifting the burden from the
state to the defendant. We disagree.
During his closing argument, the prosecutor stated
to the jury that the state was ‘‘not sure what the theory
of defense here is, and we’re all going to hear that for
the first time in a few minutes. I can guess, I can surmise,
and maybe one of those theories is, that well the defen-
dant . . . was not on Pond and Dixwell at 10:06 p.m.
back on January 11, 2011. Another one may be, well
[the defendant] was there, but the other guy did it.
[James] is the shooter. I’m not sure . . . if either of
those will pan out, but we’ll hear that in a minute.’’
During rebuttal, the prosecutor stated: ‘‘I’m not
exactly sure . . . what the theory of defense is. Is it
that [the defendant] was there but he didn’t do the
shooting or he was playing with pit bulls for nine hours
at his friends . . . house? I’m not sure about that.’’
Throughout its closing and rebuttal arguments, the state
identified evidence presented throughout the course of
the trial that supported its case and consistently stated
that the burden rested with the state.
It is well established that ‘‘prosecutors are not permit-
ted to misstate the law . . . and suggestions that dis-
tort the government’s burden of proof are likewise
improper . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Otto, 305 Conn. 51, 77, 43 A.3d
629 (2012). Furthermore, ‘‘[our Supreme Court] pre-
viously has acknowledged: [P]rosecutorial [impropri-
ety] of constitutional magnitude can occur in the course
of closing arguments. . . . In determining whether
such [impropriety] has occurred, the reviewing court
must give due deference to the fact that [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. . . . [A] prosecutor may argue the state’s
case forcefully, [provided the argument is] fair and
based upon the facts in evidence and the reasonable
inferences to be drawn therefrom.’’ (Internal quotation
marks omitted.) Id., 76.
The defendant argues that the prosecutor’s state-
ments during closing and rebuttal argument ‘‘shifted its
burden of proof’’ by suggesting that the defendant was
required to produce evidence to prove his innocence.
Further, the defendant asserts that the prosecutor’s
statements called for the defendant to produce a ‘‘suc-
cessful theory of defense for the jury’’ and, in doing so,
improperly shifted the burden.
The state counters that, when viewed in context, the
prosecutor’s statements are merely assumptions and
that ‘‘it is clear that the prosecutor was not questioning
whether the theories of the defense would . . . be con-
vincing—but whether defense counsel would, in his
closing, actually would be making the arguments
described by the prosecutor.’’ Next, the state argues
that the prosecutor was commenting on conflicting evi-
dence, where the defendant was at the time of the
shooting, that should be considered a ‘‘fair argument,
as it was based on the evidence.’’ Finally, the state
claims that the prosecutor ‘‘never argued that the defen-
dant had to successfully prove [his defense] to avoid
conviction.’’
The defendant identifies two cases to support his
claim. First, the defendant claims that United States v.
Simon, 964 F.2d 1082 (11th Cir. 1992), cert. denied, 507
U.S. 1033, 113 S. Ct. 1854, 123 L. Ed. 2d 476 (1993), is
analogous to the facts here. The prosecutor in Simon
suggested that, based on common sense, if the defen-
dant was innocent, he would have produced exculpa-
tory evidence, thus implying the burden rested with the
defendant. Id., 1086–87. In Simon, the United States
Court of Appeals for the Eleventh Circuit observed that
‘‘[p]rosecutors must refrain from burden-shifting argu-
ments which suggest that a defendant has an obligation
to produce any evidence or to prove innocence.’’ Id.,
1086.
Second, in State v. Williams, 41 Conn. App. 180, 674
A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950(1996), the defendant raised an alibi defense, and even
though the burden rested with the state to disprove the
defense, the prosecutor in that case improperly shifted
the burden. Id., 185–86. We stated that ‘‘[d]espite the
defendant’s objections that he did not have the burden
of proving his alibi defense and the trial court’s rulings
that the state was misrepresenting its burden of proof
to the jury, the prosecutor repeatedly maintained that
the defendant purposefully and selectively showed
unclear surveillance photographs to the jury because
he had no better evidence in support of his alibi . . . .’’
Id., 186–87. We held that the state’s suggestion that
the defendant had ‘‘no better evidence,’’ was improper
because it tended to ‘‘distort the state’s burden of proof
and . . . allocate[d] to the defendant the burden
. . . .’’ Id., 187.
After a review of the record, we conclude that the
prosecutor’s statements in the present case were not
improper because it is unlikely the jury would have
understood the argument in the manner claimed by the
defendant. During closing and rebuttal argument, the
prosecutor conveyed several times to the jury that the
burden of proving the defendant’s guilt rested with the
state and identified relevant evidence that supported
the state’s case and would assist the jury in making its
findings. Contrary to the defendant’s argument, the
state never shifted the burden to the defendant and did
not suggest that the defendant was required to set forth
a ‘‘legitimate’’ defense. Instead, the prosecutor specu-
lated what the defendant might argue on his closing
argument and questioned the plausibility of the defen-
dant’s arguments. These statements were fair and rea-
sonably based upon the facts in evidence.
Additionally, the challenged statements here are not
akin to those found improper in Simon or Williams.
Here, the state speculated what the defendant might
argue during his closing argument based on reasonable
inferences drawn from the evidence and attempted to
discredit it. The prosecutor presumably made these
statements to ensure that the jury focuses on what the
state deemed ‘‘pertinent’’ evidence. Again, the prosecu-
tor’s statements did not imply that the defendant was
required to raise a defense. Instead, the challenged
statements were reasonable observations based upon
the evidence presented. Thus, we conclude that the
state did not shift the burden of proof to the defendant.
B
Next, the defendant argues that during the state’s
closing argument ‘‘the prosecutor misstated George
White’s testimony in such a way as to make it more
incriminating.’’ We disagree.
During trial, White testified that he was good friends
with the defendant and that he was with the defendant
around 10:30 p.m. on January 11, 2011. White testified
that he picked the defendant up approximately one
block from the defendant’s house; they went to pur-
chase marijuana, and then returned to White’s house
to smoke and watch television. According to White, the
defendant stayed overnight at his house and left the
following morning.
The prosecutor asked White if ‘‘[a]t some point in
time [on the] evening [of January 11, 2011] when [the
defendant] was in your room, did he say something
about [what] he did before you picked him up on the
evening of January 11, 2011.’’ White testified that the
defendant told him that ‘‘I think I shot somebody.’’
White did not ask any follow-up questions because
White ‘‘did not want to get involved’’ in something that
did not involve him. In addition to White’s testimony,
Bullock testified that he was told by White during an
interview, that the defendant told White that ‘‘I shot
someone tonight.’’ (Emphasis added.)
During closing argument, the prosecutor stated in
relevant part: ‘‘[The defendant] obviously, from the
video, ran down Pond Street and probably got down
to that wooded area of Arch Street, where he eventually
hooked up with his good friend George White, whose
testimony, I would submit, went unimpeached and vir-
tually unchallenged. And Mr. White said he picked up
the defendant in that location and that they went back
to Mr. White’s house up on Fitch Street, where the
defendant then tells him that he shot somebody that
night.’’ (Emphasis added.) Near the end of the state’s
rebuttal argument, the prosecutor again recounted
White’s contact with the defendant on January 11, and
stated that the defendant told White that ‘‘I shot
somebody.’’
The defendant argues that the prosecutor’s use of the
phrase ‘‘that night’’ when describing White’s testimony
was improper. Specifically, the defendant argues that
the statements improperly portrayed White’s testimony,
and in doing so, made it ‘‘more incriminating’’ because
White never testified that the defendant used that spe-
cific phrase. Further, the defendant claims that the pros-
ecutor’s omission of ‘‘I think’’ from the defendant’s
statement that ‘‘I think I shot somebody’’ constitutes
impropriety.
The state counters by arguing that ‘‘the challenged
arguments were based in the evidentiary record’’ and
were not a ‘‘more incriminating version’’ of White’s testi-
mony, and thus the defendant’s claims should be
rejected. The state argues that the prosecutor did not
‘‘state that White testified’’ but instead argued that the
defendant told White ‘‘that he shot somebody that
night.’’ The state also argues that the prosecutor’s por-
trayal of White’s testimony was a reasonable inference
based on the evidence. Further the state urges this court
to resist parsing the language used by the prosecutor
during closing arguments.
It is well established that a prosecutor may not make
‘‘[a]n appeal to emotions that improperly diverts the
jury’s attention away from the facts and makes it more
difficult for it to decide the case on the evidence in the
record.’’ (Internal quotation marks omitted.) State v.
Felix R., 319 Conn. 1, 10, 124 A.3d 871 (2015). Further,
‘‘[w]e must give the jury the credit of being able to
differentiate between argument on the evidence and
attempts to persuade [it] to draw inferences in the
state’s favor, on one hand, and improper unsworn testi-
mony, with the suggestion of secret knowledge, on the
other hand.’’ (Internal quotation marks omitted.) State
v. Chase, 154 Conn. App. 337, 345, 107 A.3d 460 (2014),
cert. denied, 315 Conn. 925, 109 A.3d 922 (2015).
Here, the prosecutor attempted to persuade the jury
to infer that the defendant actually shot someone on
January 11, 2011. The defendant stated to White that
he thought he shot somebody hours after the shooting
took place. It is not unreasonable to infer that the defen-
dant indeed shot someone the same night because he
divulged to his close friend that he thought he shot
somebody within hours of the shooting. Additionally,
White told Bullock that the defendant said ‘‘I shot some-
one tonight’’ when interviewed after the shooting.
The prosecutor’s statements were not a mischaracter-
ization of the evidence, but instead were permissibly
based on reasonable inferences from evidence intro-
duced at trial. See State v. Warholic, 278 Conn. 354,
367, 897 A.2d 569 (2006) (‘‘the prosecutor may argue
for the reasonable inferences that the jury may draw
from the evidence adduced at trial, including the defen-
dant’s commission of the crime’’). The prosecutor’s
argument that the defendant shot someone the night of
January 11, 2011, is supported by reasonable inferences
and the direct testimony of Bullock regarding his inter-
view of White. Thus, the statements were not a mischar-
acterization of the evidence. Accordingly, we conclude
that the prosecutor’s comments were not improper.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-55a (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses, or is armed with and threatens the
use of or displays or represents by his words or conduct that he possesses
a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .’’
2
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (5) with intent to cause
physical injury to another person, he causes such injury to such person or
to a third person by means of the discharge of a firearm.’’
3
General Statutes § 29-35 (a) provides in relevant part: ‘‘No person shall
carry any pistol or revolver upon his or her person, except when such person
is within the dwelling house or place of business of such person, without
a permit to carry the same issued as provided in section 29-28. . . .’’
4
Redmond testified that he knew the defendant as ‘‘Bolo’’ and James
as ‘‘Tank.’’
5
Bullock had a conversation with White over the phone. White told Bullock
that he saw the defendant on January 11, 2011, at a gas station near his
home between 1 p.m. and 5 p.m., and ‘‘they just went on their separate ways
after saying hello.’’
6
We note that the court provided the jury with copies of the model jury
instructions from the Judicial Branch website that contained handwritten
edits by the court incorporating the facts and charges of this case. ‘‘[T]he
test of a court’s charge is not whether it is as accurate upon legal principles
as the opinions of a court of last resort but whether it fairly presents the
case to the jury in such a way that injustice is not done to either party
under the established rules of law. . . . As long as [the instructions] are
correct in law, adapted to the issues and sufficient for the guidance of the
jury . . . [an appellate court] will not view the instructions as improper.’’
(Internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 798, 772
A.2d 559 (2001). Although it may have been preferable that the court pre-
sented the charge in a more precise and lucid manner, the instructions
provided here to the jury were, in our view, sufficient under the criteria
discussed in Davis.
7
We note that the state has not claimed that the defendant implicitly
waived a claim of instructional error pursuant to State v. Kitchens, 299
Conn. 447, 482–83, 10 A.3d 942 (2011).
8
The defendant also claims that his conviction should be reversed under
the plain error doctrine. See Practice Book § 60-5. ‘‘Review under the plain
error doctrine is reserved for truly extraordinary situations where the exis-
tence of the error is so obvious that it affects the fairness and integrity of
and public confidence in the judicial proceedings. . . . Additionally, the
claimed error must be both clear and harmful enough such that a failure
to remedy the error would result in manifest injustice.’’ (Internal quotation
marks omitted.) State v. Aponte, 66 Conn. App. 429, 439, 784 A.2d 991 (2001),
cert. denied, 259 Conn. 907, 789 A.2d 995 (2002). In light of our resolution
of the defendant’s claims, that standard is not met.
9
General Statutes § 53a-8 (a) provides that: ‘‘A person, acting with the
mental state required for commission of an offense, who solicits, requests,
commands, importunes or intentionally aids another person to engage in
conduct which constitutes an offense shall be criminally liable for such
conduct and may be prosecuted and punished as if he were the principal
offender.’’
10
As noted previously in this opinion, the court provided an example of
accessorial liability following a question from the jury during its deliber-
ations.