State v. Fasanelli ( 2016 )

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STATE OF CONNECTICUT v. JAMES
MICHAEL FASANELLI
(AC 36532)
Gruendel, Prescott and Schaller, Js.
Argued November 16, 2015—officially released February 16, 2016
(Appeal from Superior Court, judicial district of New
Britain, Alander, J.)
Richard E. Condon, Jr., senior assistant public
defender, for the appellant (defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, and Kevin J. Murphy, former supervisory
assistant state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, James Michael Fasa-
nelli, appeals from the judgment of conviction, rendered
after a jury trial, of one count of sale of narcotics by
a person who is not drug-dependent in violation of
General Statutes § 21a-278 (b). On appeal, the defendant
claims that he was deprived of his constitutional right
to a fair trial as a result of prosecutorial impropriety
during closing arguments. We disagree that the prosecu-
tor’s arguments were improper and, therefore, affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. In September, 2010, William Fredericks contacted
Detective Louis Palmieri of the Southington Police
Department about becoming a confidential informant in
narcotics investigations. Upon meeting with the police,
Fredericks informed them that he had received informa-
tion from a third party who said that Fredericks could
purchase heroin from the defendant at the Southington
Motor Lodge (Lodge). Fredericks had been selling nar-
cotics at this time and had criminal charges pending
against him for third degree burglary and violation of
probation.
On September 20, 2010, Fredericks contacted Detec-
tive Palmieri and agreed to participate in a controlled
narcotics buy from the defendant. They arranged to
meet at the Cadillac Ranch, located approximately two
hundred yards from the Lodge. Fredericks met with
Palmieri and Detective Kyle Dobratz, who patted down
Fredericks and found no narcotics on his person. The
detectives then outfitted Fredericks with a one-way
audio recorder and twenty dollars. Officer Mark DiBat-
tista monitored the audio device from a separate vehi-
cle, which was parked so that he could view the
defendant’s room at the Lodge.
Once equipped, Fredericks walked from the Cadillac
Ranch to the Lodge, monitored audibly by Officer DiBat-
tista the entire time. Fredericks walked to the defen-
dant’s door at the Lodge and knocked. The defendant
opened the door and a short conversation between
Fredericks and the defendant was recorded. During
the conversation, Fredericks inquired as to how many
‘‘bags’’ the defendant could ‘‘spot . . . .’’ The defendant
responded two. Fredericks asked if the defendant could
‘‘do them for ten,’’ to which the defendant responded,
‘‘[n]ope.’’ Fredericks then gave the defendant twenty
dollars in exchange for the two bags of heroin and
inquired as to how long it would take for the defendant
to acquire more bags. The defendant and Fredericks
planned to meet again later, and Fredericks began walk-
ing back to the Cadillac Ranch.
Upon arriving back at the Cadillac Ranch, Fredericks
gave Detective Palmieri two small bags of heroin that
he had obtained from the defendant. Detective Palmieri
then searched Fredericks for additional drugs and
money. Fredericks informed Detective Palmieri that he
could buy additional bags of heroin from the defendant
later that night.
Later that night, Fredericks again met with Detectives
Palmieri and Dobratz at the Cadillac Ranch, and they
followed the same procedures as before. The detectives
searched Fredericks and wired him with the audio
recording device. Fredericks then walked to the Lodge,
knocked on the defendant’s door, and entered the room.
Fredericks allegedly1 exchanged thirty dollars with the
defendant for three bags of heroin. Fredericks returned
to the Cadillac Ranch and gave the three bags of heroin
to Detective Palmieri. Significant portions of the audio
recording of this transaction between the defendant and
Fredericks were inaudible due to radio interference.
On January 10, 2011, Detective Dobratz served an
arrest warrant on the defendant, charging him with two
counts of sale of narcotics in violation of § 21a-278 (b),
one count for each transaction on September 20, 2010.
After a jury trial, the defendant was convicted on count
one (first transaction), and acquitted on count two (sec-
ond transaction). The defendant was sentenced to eight
years incarceration suspended after five years, followed
by three years of probation. This appeal followed. Addi-
tional facts will be set forth as necessary.
The defendant claims that the prosecutor deprived
him of his due process right to a fair trial by committing
various acts of prosecutorial impropriety during his
initial and rebuttal closing arguments to the jury. In
particular, the defendant claims that the prosecutor
improperly (1) impugned the role and integrity of
defense counsel, (2) expressed his personal opinion by
vouching for the credibility of a witness, and (3) argued
facts not in evidence. The state argues that the prosecu-
tor’s comments were not improper. Alternatively, the
state contends that even if some of the prosecutor’s
comments were improper, none of them deprived the
defendant of a fair trial. We disagree with the defendant
that the prosecutor’s comments were improper.
We begin with the applicable standard of review and
guiding legal principles. Although the defendant did
not preserve his claim of prosecutorial impropriety by
objecting to the alleged improprieties at trial, ‘‘[o]nce
prosecutorial impropriety has been alleged . . . it is
unnecessary for a defendant to seek to prevail under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), and it is unnecessary for an appellate court to
review the defendant’s claim under Golding.’’ (Footnote
omitted.) State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978
(2007). ‘‘In analyzing claims of prosecutorial impropri-
ety, we engage in a two step analytical process. . . .
The two steps are separate and distinct. . . . We first
examine whether prosecutorial impropriety occurred.
. . . Second, if an impropriety exists, we then examine
whether it deprived the defendant of his due process
right to a fair trial. . . . In other words, an impropriety
is an impropriety, regardless of its ultimate effect on
the fairness of the trial.’’2 (Citations omitted.) Id., 32.
‘‘We are mindful throughout this inquiry, however,
of the unique responsibilities of the prosecutor in our
judicial system. A prosecutor is not only an officer of
the court, like every other attorney, but is also a high
public officer, representing the people of the [s]tate,
who seek impartial justice for the guilty as much as for
the innocent. . . . By reason of his [or her] office, [the
prosecutor] usually exercises great influence [on]
jurors. [The prosecutor’s] conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he [or she] repre-
sents the public interest, which demands no victim and
asks no conviction through the aid of passion, prejudice
or resentment. . . . That is not to say, however, that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal devices is simply fair argument. . . . Indeed, this
court give[s] 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.
The state’s attorney should not be put in the rhetorical
straitjacket of always using the passive voice, or contin-
ually emphasizing that he is simply saying I submit to
you that this is what the evidence shows, or the like.’’
(Citations omitted; internal quotation marks omitted.)
State v. Wilson, 308 Conn. 412, 435, 64 A.3d 91 (2013).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . When making closing arguments to the
jury, [however, counsel] must be allowed a generous
latitude in argument, as the limits of legitimate argu-
ment 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 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. . . . Moreover, [i]t
does not follow . . . that every use of rhetorical lan-
guage or device [by the prosecutor] is improper. . . .
The occasional use of rhetorical devices is simply fair
argument.’’ (Internal quotation marks omitted.) State v.
Ciullo, 314 Conn. 28, 37, 100 A.3d 779 (2014).
‘‘[Although] the privilege of counsel in addressing the
jury should not be too closely narrowed or unduly ham-
pered, it must never be used as a license to state, or
to comment upon, or to suggest an inference from, facts
not in evidence, or to present matters which the jury
ha[s] no right to consider.’’ (Internal quotation marks
omitted.) Id., 38.
I
The defendant first claims that, in his closing argu-
ments, the prosecutor improperly denigrated defense
counsel. Specifically, he claims that the prosecutor’s
remarks improperly implied that defense counsel was
using standard defense tactics and was focusing on
irrelevant inconsistencies in order to deceive the jury.
The state responds that the prosecutor’s comments
were proper responses to defense counsel’s closing
argument because they challenged the theory of the
defense, not the role or integrity of defense counsel,
and were closely tied to the evidence. We agree with
the state.
The following additional facts are relevant to this
claim. During the course of the trial, defense counsel
cross-examined the state’s witnesses regarding a variety
of inconsistencies between their trial testimony and
their prior sworn statements. Fredericks and Detective
Palmieri were both questioned by defense counsel
about an inconsistency between their trial testimony
and a prior sworn statement, written by Detective Palm-
ieri and signed by Fredericks, as to whether the first
narcotics transaction occurred outside of the defen-
dant’s room or in the doorway of the room. Fredericks’
sworn statement stated that the first transaction
occurred outside the room, but Fredericks testified at
trial that this was incorrect, that he had been in the
doorway, although he did not fully enter the room.
Defense counsel also cross-examined Fredericks and
Detective Palmieri about the fact that the sworn state-
ment was dated September 20, 2010, the date of the
transaction, but was not signed until September 23,
2010, implying that there was some inconsistency as to
when the sworn statement was actually written and
suggesting that the sworn statement may not be accu-
rate if written three days after the event occurred.
On cross-examination of Officer DiBattista, defense
counsel also highlighted the inconsistencies between
Officer DiBattista’s trial testimony and his supplemental
police report. In the report, Officer DiBattista wrote
that ‘‘[s]urveillance [u]nits observed [Fredericks] enter
the room, [the defendant] handed [Fredericks] (3) pack-
ages of heroin and [Fredericks] handed [the defendant]
the [p]olice recorded money.’’ At trial, however, Officer
DiBattista, the only person who surveilled the transac-
tion, stated that he did not actually see any exchange
of money or narcotics; rather, his report included both
his personal observations and information provided
by Fredericks.
In the prosecutor’s initial summation, he mentioned
defense counsel’s focus on these inconsistencies: ‘‘I’m
going to repeat this a couple times, but it’s really
important you use your common sense. Why, because
I’m sure the defense is going to point out every time
where someone put a period instead of a comma, or
put a twenty-three instead of a twenty, but you have
to decide, is that important? Does that mean that some-
one’s lying? Again, that’s where your life experience
and your common sense come into play. It is defense’s
job to poke holes in the state’s case. And so you have
to decide as representatives of the community, okay,
is that a serious deficiency. Is that something that
causes me to not believe this happened, or is that just
something that human beings do, make mistakes.’’
(Emphasis added.)
In response, defense counsel, in line with his defense
strategy during cross-examination, argued that the
inconsistencies in the testimony of the state’s witnesses
were not merely small mistakes, but were significant
enough to create reasonable doubt as to whether a
drug transaction occurred because the state’s witnesses
were not credible: ‘‘The state said we’re talking about
the difference between a period and a comma. We’re
not talking about the difference between a period and
a comma, we’re talking about the difference between
whether something happened outside versus whether
something happened inside. We’re talking about
whether something happened in—whether somebody
was able to see something happen, or whether some-
body was able not to see something happen because
of where they were in their vantage point. We’re talking
about credibility. We’re talking about truth, and we’re
talking about who’s testifying truthfully and who isn’t.’’
Defense counsel then attacked at great length the
credibility of the state’s witnesses, restating the incon-
sistencies that were brought to light on cross-examina-
tion. Toward the end of his closing argument, defense
counsel, relying on these inconsistencies, argued that
Fredericks had concealed the heroin bags on his person
prior to the transactions in order to set up the defendant
in hopes of receiving a reduced sentence in his own
pending cases in exchange for being a confidential infor-
mant and testifying against the defendant. He further
argued that there was nothing on the audio recording
from the first transaction to suggest that drugs were
even involved, or, at most, the audio recording from
the first transaction only established a postponed
drug transaction.
In rebuttal, regarding Officer DiBattista lying about
having seen the first drug transaction actually take
place, the prosecutor argued: ‘‘If Officer DiBattista
wanted to tell you an untruth, to say something that
wasn’t true, how easy would it have been for him to
sit up here and tell you, hey—uh—I saw the defendant
passing the drugs to William Fredericks. . . . [H]e has
his reports. He could sit up there and just mouth that
out and then you wouldn’t have any inconsistency at
all. But what do you have? You have a person telling
you the truth. What they remember—what—and their
recollection was, well, I didn’t actually see him passing
the drugs. But again, if he was—if the defense makes
a big deal about all these inconsistencies, if Officer
DiBattista wanted to lie, to tell you an untruth about
what happened here, the easiest thing in the world
would have been to give you exactly what was written
in that report. And there’s nobody would be hitting
you up for, oh, this is inconsistent. I submit to you
that the reason why that’s the case is because he just
told you he had a picture in his mind what happened,
he told you exactly what he remembered what he saw.’’
(Emphasis added.)
The prosecutor then argued that for almost every
inconsistency there was an explanation: ‘‘I mean, just to
give you an example of how the defense has absolutely
whittled down. You remember there was this thing
about the statement given on September 20th? And
remember September 20th is where the—uh—is at the
top of the page. And yeah, I know you wrote September
23rd at the bottom. You remember all that? . . . I
mean, this is the job of the defense, but it doesn’t mean
that you have to decide if those are important inconsis-
tencies.’’ (Emphasis added.)
As to defense counsel’s argument that the audio
recording of the first transaction was not proof of a
drug transaction, or, at most, was proof of a postponed
drug transaction, the prosecutor argued: ‘‘And is there
really any dispute that the first tape is a drug transac-
tion? I mean, I know the defense’s job is to try to say,
oh, here’s the explanation. This is the most damaging
piece of evidence, obviously, because what you have
in here are two things. One is, you have the defendant’s
voice, and you have a drug transaction. When somebody
is saying—Fredericks is saying how many of those bags
can you spot? Well, he’s talking about drugs. When the
defendant says, I only have two left right now. What’s
he talking about? I mean, again, and this is the defense’s
job, to try to stir up, you know, some confusion here.
And if you listen to the whole tape, is there any question
in [your] mind they’re talking about a drug transaction?’’
(Emphasis added.)
We turn then to the authorities relevant to this claim.
‘‘It has been held improper for the prosecutor to impugn
the role of defense counsel. . . . In particular, [i]t is
improper for a prosecutor to tell a jury, explicitly or
implicitly, that defense counsel is employing standard
tactics used in all trials, because such an argument
relies on facts not in evidence and has no bearing on
the issue before the jury, namely, the guilt or innocence
of the defendant.’’ (Internal quotation marks omitted.)
State v. Payne, 303 Conn. 538, 566, 34 A.3d 370 (2012).
‘‘There is a distinction [however] between argument
that disparages the integrity or role of defense counsel
and argument that disparages a theory of defense.’’
State v. Orellana, 89 Conn. App. 71, 101, 872 A.2d 506,
cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005).
‘‘Closing arguments of counsel . . . are seldom care-
fully constructed in toto before the event; improvisation
frequently results in syntax left imperfect and meaning
less than crystal clear. . . . [S]ome leeway must be
afforded to the advocates in offering arguments to the
jury in final argument. . . . [C]ounsel must be allowed
a generous latitude in argument . . . .’’ (Internal quota-
tion marks omitted.) State v. Nixon, 91 Conn. App. 333,
339, 880 A.2d 199, cert. denied, 276 Conn. 911, 886 A.2d
426 (2005).
Our Supreme Court has repeatedly frowned upon a
prosecutor’s use of terms and phrases that imply that
defense counsel ‘‘had not based his argument on fact
or reason, but had intended to mislead the jury by means
of an artfully deceptive argument.’’ (Internal quotation
marks omitted.) State v. Outing, 298 Conn. 34, 85, 3
A.3d 1 (2010), cert. denied, 562 U.S. 1225, 131 S. Ct.
1479, 179 L. Ed. 2d 316 (2011); see also State v. Albino,
312 Conn. 763, 776–77, 97 A.3d 478 (2014) (holding
improper prosecutor’s comparison of defense counsel’s
tactics to octopus’ defense mechanism of releasing ink
to hide and deceive); State v. Maguire, 310 Conn. 535,
557, 78 A.3d 828 (2013) (‘‘smoke and mirrors’’ was
improper because it implied deception); but see State
v. Fauci, supra, 282 Conn. 39–40 (holding ‘‘red herring’’
to be proper because it was in response to defense
counsel’s theory of defense); State v. Nixon, supra, 91
Conn. App. 338 (‘‘defendant will most likely try to dis-
tract you from the big picture’’ not improper [internal
quotation marks omitted]); State v. Young, 76 Conn.
App. 392, 405, 819 A.2d 884 (prosecutor’s comment that
jury should not to be ‘‘ ‘fooled’ ’’ or distracted by defense
counsel’s argument was proper), cert. denied, 264 Conn.
912, 826 A.2d 1157 (2003); State v. Jenkins, 70 Conn.
App. 515, 536–38, 800 A.2d 1200 (‘‘‘diverting you from
the facts’ ’’ not improper), cert. denied, 261 Conn. 927,
806 A.2d 1062 (2002).
The defendant contends that the prosecutor improp-
erly denigrated defense counsel by implying that
defense counsel was being deceitful and was using stan-
dard defense tactics when he stated: (1) ‘‘I’m sure the
defense is going to point out every time where someone
put a period instead of a comma . . . . It is defense’s
job to poke holes in the state’s case’’; (2) ‘‘the defense
makes a big deal about all these inconsistencies . . .
[and is] hitting you up for, oh, this is inconsistent’’;
(3) ‘‘the defense has absolutely whittled [the evidence]
down’’; (4) ‘‘this is the job of the defense’’; and (5) ‘‘I
know the defense’s job is to try to say, oh, here’s the
explanation. . . . [T]his is the defense’s job, to try to
stir up, you know, some confusion here.’’ We do not
agree.
When read in context, the challenged comments were
not improper. The prosecutor did not attack defense
counsel; rather, each of the challenged comments
attacked the theory of the defendant that these inconsis-
tencies were important because they created reason-
able doubt as to whether there was a drug transaction
in which the defendant was involved. By stating that
defense counsel would ‘‘point out’’ the inconsistencies
and that he had in fact made ‘‘a big deal’’ about them
in his closing argument, the prosecutor attempted to
rebut the theory of defense, rather than denigrate
defense counsel by implying that he was emphasizing
minor inconsistencies in order to deceive the jury. Dur-
ing closing arguments, the prosecutor linked these com-
ments back to the record, which showed that these
inconsistencies existed and that defense counsel had
repeatedly emphasized them. The prosecutor offered
explanations for these inconsistencies, supported by
evidence in the record, and argued that these inconsis-
tencies did not discredit the state’s witnesses. Thus,
in context, the prosecutor’s comments were based on
evidence in the record and attacked only the theory of
defense. Accordingly, they were proper.
Additionally, the prosecutor did not imply that
defense counsel was attempting to deceive the jury
when the prosecutor used the phrases, ‘‘stir up . . .
confusion,’’ and ‘‘poke holes . . . .’’ Comments like
‘‘smoke and mirrors’’ are improper because they insinu-
ate that defense counsel is being deceptive. In the pre-
sent case, ‘‘stir up . . . confusion’’ and ‘‘poke holes’’
are not the practical equivalent of ‘‘smoke and mirrors.’’
These phrases are more akin to ‘‘red herring’’; ‘‘distract’’;
‘‘fooled’’; and ‘‘divert you from the facts’’, which our
appellate courts have concluded are not improper
because they do not imply that defense counsel is being
deceptive. See State v. Fauci, supra, 282 Conn. 40; State
v. Nixon, supra, 91 Conn. App. 338–39; State v. Young,
supra, 76 Conn. App. 405; State v. Jenkins, supra, 70
Conn. App. 538. The prosecutor simply responded to
defense counsel’s argument that the inconsistencies in
the testimony of the state’s witnesses were significant
enough to destroy the witnesses’ credibility and create
reasonable doubt as to whether a drug transaction
occurred.
Additionally, the prosecutor did not imply that
defense counsel used standard defense tactics. See
State v. Payne, supra, 303 Conn. 566. In three comments,
the prosecutor argued that it was ‘‘the defense’s job’’
to either highlight inconsistencies or to offer explana-
tions for potentially damning evidence. In isolation,
these comments may appear improper and we caution
attorneys against using such generic language. In con-
text, however, all three comments were linked to the
evidence presented at trial and responded to defense
counsel’s closing argument that the inconsistencies dis-
credited the state’s witnesses and that the first audio-
tape was not proof of a drug transaction. Furthermore,
a prosecutor must be granted ‘‘ ‘generous latitude’ ’’ in
closing arguments; State v. Ciullo, supra, 314 Conn. 37;
and ‘‘a court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging
meaning . . . .’’ (Internal quotation marks omitted.)
Id., 48. Thus, despite the general phrasing of the chal-
lenged comments, the context shows that they were
proper arguments linked to evidence in the record in
response to the theory of defense.
As for the prosecutor’s comments that the defense
‘‘[is] hitting you up for, oh, this is inconsistent,’’ and, ‘‘the
defense has absolutely whittled down,’’ the defendant
takes these comments completely out of context and
attempts to morph them into something improper. The
‘‘hitting you up’’ comment responded to the alleged
inconsistency between Officer DiBattista’s trial testi-
mony and his supplemental buy report as to whether
he actually viewed money and/or drugs changing hands
during the first transaction. The prosecutor did not
imply that defense counsel tried to deceive the jury by
overwhelming it with a plethora of irrelevant inconsis-
tencies. Rather, he rebutted the theory of defense by
offering an explanation for the inconsistency and asked
the jury to draw a reasonable inference that if Officer
DiBattista wanted to lie, he could have easily done so
by sticking to what he wrote in his report.
As for the ‘‘whittled down’’ comment, the prosecutor
did not say that the defense had been deceitful by whit-
tling down the evidence. Rather, in context, it is clear
that the prosecutor stated that he could whittle down
the theory of defense because he could give an explana-
tion for almost every inconsistency. By doing so, the
prosecutor did not imply anything negative about
defense counsel. In sum, we conclude that the chal-
lenged comments of the prosecutor did not denigrate
defense counsel or his role, and, therefore, were proper.
II
The defendant next claims that the prosecutor
improperly expressed his personal opinion that the
state’s witness, Fredericks, was credible. The state
responds that the prosecutor’s comment constituted
proper argument because it was based on the evidence
produced at trial and the reasonable inferences that the
jury could have drawn, and was a proper response to
defense counsel’s attack on Fredericks’ credibility dur-
ing closing argument. We agree with the state.
During his closing argument, defense counsel vigor-
ously attacked Fredericks’ credibility. He discussed at
length the inconsistencies in Fredericks’ testimony, his
criminal background, and his desire to receive a more
favorable plea agreement in his pending criminal cases
in return for serving as a confidential informant.
Defense counsel then offered his own theory that Fred-
ericks, intent on currying favor with the state, set the
defendant up by hiding the bags of heroin on his person
prior to the transactions.
In his rebuttal, the prosecutor stated: ‘‘[T]he defense
wants to make this case, obviously, about . . . Freder-
icks. . . . Fredericks has a lot of baggage. Although,
again, as I said to you before, I submit to you he testified
accurately, truthfully. He admitted to what his motiva-
tions were. He had this case pending, and that’s the
reason why he became a [confidential informant].’’
(Emphasis added.) Then the prosecutor addressed the
‘‘inconsistency issue[s].’’ He offered explanations,
based on Fredericks’ testimony at trial, for the inconsis-
tencies in Fredericks’ testimony concerning whether
the first transaction occurred outside or inside or in
the doorway—Fredericks was trying to distinguish the
two transactions with the first being in the doorway
and the second being all the way inside the room. The
prosecutor then stated that it was up to the jury to
‘‘decide if that’s important or not.’’
‘‘[A] prosecutor may not express his [or her] own
opinion, directly or indirectly, as to the credibility of
the witnesses. . . . Such expressions of personal opin-
ion are a form of unsworn and unchecked testimony,
and are particularly difficult for the jury to ignore
because of the prosecutor’s special position. . . . Put
another way, the prosecutor’s opinion carries with it
the imprimatur of the [state] and may induce the jury
to trust the [state’s] judgment rather than its own view
of the evidence. . . . Moreover, because the jury is
aware that the prosecutor has prepared and presented
the case and consequently, may have access to matters
not in evidence . . . it is likely to infer that such mat-
ters precipitated the personal opinions. . . . However,
[i]t is not improper for the prosecutor to comment upon
the evidence presented at trial and to argue the infer-
ences that the jurors might draw therefrom . . . . We
must give the jury the credit of being able to differenti-
ate 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.
The state’s attorney should not be put in the rhetorical
straitjacket of always using the passive voice, or contin-
ually emphasizing that he [or she] is simply saying I
submit to you that this is what the evidence shows, or
the like.’’ (Internal quotation marks omitted.) State v.
Ciullo, supra, 314 Conn. 40–41. ‘‘[W]e must look at the
statement, including the use of the pronoun ‘I,’ as a
whole, in determining whether it was an expression of
the state’s attorney’s personal opinion regarding the
credibility of witnesses.’’ State v. Fauci, supra, 282
Conn. 38.
‘‘A prosecutor’s mere use of the words ‘honest,’ ‘credi-
ble,’ or ‘truthful’ does not, per se, establish prosecutorial
impropriety.’’ State v. Ciullo, supra, 314 Conn. 41. ‘‘The
distinguishing characteristic of impropriety in this cir-
cumstance is whether the prosecutor asks the jury to
believe the testimony of the state’s witnesses because
the state thinks it is true, on the one hand, or whether
the prosecutor asks the jury to believe it because logic
reasonably thus dictates.’’ State v. Fauci, supra, 282
Conn. 48.
In the present case, the prosecutor’s comment was
not improper. His assertion that Fredericks was credi-
ble was based on evidence presented at trial and the
reasonable inferences that the jury might have drawn
from that evidence. The prosecutor immediately fol-
lowed the challenged comment with the reasons for
why Fredericks was credible: he had been honest about
his pending criminal charges and about his hope that
his sentence would be lightened in exchange for serving
as a confidential informant. Then, throughout his clos-
ing argument, the prosecutor explained why Fredericks
was credible on the basis of evidence produced at trial.
From this evidence, the jury could have reasonably
inferred that Fredericks was credible. Additionally, the
prosecutor prefaced his comment with, ‘‘I submit,’’ and
his comment was in direct response to defense coun-
sel’s extensive attack on Fredericks’ credibility.
Thus, the prosecutor did not ask the jury to believe
Fredericks’ testimony because the state vouched for
his credibility, but because it was logical to do so on
the basis of the evidence presented at trial and the
reasonable inferences that could be drawn therefrom.
We conclude that the prosecutor’s comment did not
improperly vouch for the credibility of Fredericks, and,
therefore, was proper.
III
Finally, the defendant claims that the prosecutor
improperly argued facts not in evidence when he stated
to the jury that the defendant had a ‘‘deep, very distinc-
tive voice.’’ Once again, the state responds that the
prosecutor’s comment constituted proper argument
that was based on the evidence produced at trial and the
reasonable inferences that the jury could have drawn
therefrom. We agree with the state.
During trial, the audio recording of the first transac-
tion was admitted as a full exhibit and was played to
the jury. Two of the state’s witnesses, Detective Dobratz
and Officer DiBattista, on the basis of their prior interac-
tions with the defendant during which they heard his
voice, identified the second voice on the audio
recording as belonging to the defendant, the other voice
being that of Fredericks. At no point did defense coun-
sel object to the identifications of the voice on the audio
recording as belonging to the defendant. The defendant
did not testify at trial, and at no point did the jury hear
the defendant speak during the course of the trial.
In his summation, defense counsel questioned: ‘‘How
do we know that the voice that’s on this tape is [the
defendant]? How do we know that? [Fredericks] says
it is. . . . But I implore you to listen to the two tapes,
listen to them together. See if the tapes—if the voice
on the tapes is the same between the two tapes, whether
all the voices are the same.’’
In response, the prosecutor argued: ‘‘Didn’t [DiBat-
tista] say, I heard that tape, that was the defendant.
Didn’t . . . Dobratz say, I met with the defendant when
I arrested him in the apartment. I spent about a half hour
with him then at the police station doing the booking
procedure. That’s the defendant on the tape. I submit
to you there’s no dispute that this is the defendant. The
deep—you could hear his voice more toward the end
of the first tape—it’s a deep very distinct voice.’’
(Emphasis added.)
‘‘A prosecutor, in fulfilling his duties, must confine
himself to the evidence in the record. . . . [A] lawyer
shall not . . . [a]ssert his personal knowledge of the
facts in issue, except when testifying as a witness. . . .
Statements as to facts that have not been proven
amount to unsworn testimony, which is not the subject
of proper closing argument. . . . [T]he state may [how-
ever] properly respond to inferences raised by the
defendant’s closing argument.’’ (Citations omitted;
internal quotation marks omitted.) State v. Singh, 259
Conn. 693, 717, 793 A.2d 226 (2002). Furthermore, ‘‘[a]
prosecutor may invite the jury to draw reasonable infer-
ences from the evidence; however, he or she may not
invite sheer speculation unconnected to evidence.’’
Id., 718.
The defendant in this case argues that the prosecu-
tor’s comment about the ‘‘deep, very distinct’’ sound of
the defendant’s voice improperly included facts not in
evidence because no witness testified to the character-
istics of the defendant’s voice and the jury never heard
the defendant speak in court. Although the jurors in
the present case did not hear the defendant speak at
trial, they did hear the voice, allegedly of the defendant,
on the audiotape of the first transaction, which was
submitted as a full exhibit. There was also testimony
from two of the state’s witnesses that was based upon
their prior interactions with the defendant that the
defendant’s voice was on the audiotape. By hearing the
tape, the jury could have reasonably inferred that the
voice, allegedly of the defendant, on the audiotape was
deep and distinctive. Additionally, the jury could have
reasonably credited the testimony of the state’s wit-
nesses that the voice on the audiotape belonged to the
defendant. Thus, logically, the jury could have reason-
ably inferred from the evidence produced at trial the
following syllogism: If the voice on the audio recording
is deep and distinctive and if the voice on the audio
recording is the defendant’s voice, then the defendant’s
voice is deep and distinctive. In commenting on the
characteristics of the defendant’s voice, the prosecutor
did not invite sheer speculation unconnected to the
evidence; rather, he invited the jury to draw a reason-
able inference from the evidence.
Furthermore, the prosecutor was responding to infer-
ences raised by defense counsel that there was no evi-
dence that it was the defendant’s voice on the audio
recording. In essence, the prosecutor was arguing that
Officer DiBattista’s and Detective Dobratz’ identifica-
tions of the defendant as the second speaker on the
audio recording were credible because the voice on the
tape, which had been identified as the defendant’s voice,
was deep and distinctive; the more distinct the voice,
the more credible the identification of the speaker.
Therefore, we conclude that the prosecutor’s comment
was proper because he did not rely on facts not in
evidence when he stated that the defendant had a ‘‘deep,
very distinct voice’’ during his rebuttal closing sum-
mation.
In sum, we conclude that none of the challenged
comments of the prosecutor were improper. Accord-
ingly, the defendant was not deprived of his right to a
fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury acquitted the defendant of the count relating to this transaction.
2
A reviewing court must apply the factors set forth in State v. Williams,
204 Conn. 523, 540, 529 A.2d 653 (1987), to decide whether an impropriety
denied the defendant his due process right to a fair trial. These factors
include a consideration of the extent to which the impropriety was invited
by defense counsel’s conduct or argument, the severity of the impropriety,
the frequency of the impropriety, the centrality of the impropriety to the
critical issues in the case, the strength of any curative measures taken, and
the strength of the state’s case. Id. Because we determine that no impropriety
occurred, we are not required to engage in this analysis.