State v. Pernell ( 2019 )

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STATE OF CONNECTICUT v. ANTHONY PERNELL
(AC 42470)
Lavine, Prescott and Bear, Js.
Syllabus
Convicted, after a jury trial, of the crime of murder in connection with
the shooting death of the victim, the defendant appealed. At trial, the
defendant testified, inter alia, that he and the victim were smoking
phencyclidine in his bedroom while the victim exchanged a series of
phone calls with her mother to arrange for a ride to work. The defendant
further testified that a heated conversation ensued between the victim
and her mother, that the victim subsequently took a gun from the defen-
dant’s closet and put the gun to her head, and that the gun went off
when the defendant tried to take it from the victim. On appeal, the
defendant claimed that he was deprived of his due process right to
a fair trial because of certain prosecutorial improprieties in closing
argument. Held:
1. The defendant could not prevail on his claim that the prosecutor improp-
erly opined on how someone should act during a police interview
because there was no evidence as to how a grieving person typically
would respond when questioned by the police hours after witnessing his
friend’s death, nor about how the defendant’s ingestion of phencyclidine
could have affected his behavior during the police interview; the prosecu-
tor, who merely asked the jurors to consider the defendant’s demeanor
during the police interview and argued the inference that he was calm
during that interview, properly prompted the jurors to employ their
common sense in considering the evidence, and he simply observed
that the defendant was calm and calculating at the time of the police
interview, which the jurors reasonably could have inferred from the
video of the police interview that was entered into evidence.
2. The defendant’s claim that the prosecutor improperly interjected his own
experience by stating what he would have done if he had found himself
in the defendant’s circumstances was unavailing; the challenged com-
ment of the prosecutor was not an improper personal anecdote and
was based squarely on the evidence that was heard by the jury, including
the defendant’s testimony that he failed to answer the victim’s cell phone
when her mother called after the shooting, as well as his testimony
regarding the victim’s heated conversation with her mother that led to
her supposedly picking up the gun and holding it to her head to attempt
suicide, and the prosecutor’s statement about what he would have done
did not indicate that the statement was based on the prosecutor’s own
experience and was the rough equivalent of asking the jurors what they
would have done in the defendant’s shoes after the shooting.
3. The defendant could not prevail on his claim that the prosecutor improp-
erly appealed to the jurors’ emotions when the prosecutor speculated
that the defendant went through the victim’s purse after her death and
found letters regarding child custody issues; the prosecutor’s comment
was a proper response to an inference raised by defense counsel that
a letter from the victim’s child custody attorney in the victim’s purse
corroborated the defendant’s story that the victim was suicidal and
trying to kill herself because of child custody issues, and there was
sufficient evidence in the record to support the inference that the defen-
dant went through the victim’s purse, including the defendant’s affirma-
tive efforts to portray the victim’s death as a suicide, as well as the time
and opportunity he had to do so after the shooting and before the
police arrived.
4. The defendant could not prevail on his claim that the prosecutor’s state-
ment that the defendant’s version of the events, namely, that the gun
was in both his and the victim’s hands at the time of discharge, contra-
dicted the gunshot residue evidence was improper because it was not
properly derived from the evidence presented; although the gunshot
residue expert did not state with absolute certainty that the victim’s
hands could not have been on the gun at the time of discharge, it was
reasonable for the jury to infer that the victim did not have her hands
on the gun at the time of discharge due to the lack of gunshot residue
on her hands, and, thus, the prosecutor properly argued a fair inference
from the evidence to the jury.
5. The defendant’s claim that the prosecutor’s use of the words ‘‘kill shot’’
improperly appealed to the jurors’ sympathies and emotions because
those words implied more than mere murder was unavailing, as the
words used were factually accurate and supported by the evidence that
the victim was in fact killed by a gunshot to her forehead, and the
evidence presented supported the inference that the victim’s death was
intentionally caused by the defendant.
6. Although the prosecutor improperly appealed to the jurors’ sympathies
by using the word ‘‘executed’’ and improperly expressed his personal
opinion by making the statement that ‘‘[i]t’s shameful’’ that the defendant
went through the victim’s purse after her death, those improprieties did
not deprive the defendant of his due process right to a fair trial; the
prosecutorial improprieties were not so serious as to amount to a denial
of due process, as defense counsel invited the prosecutor’s use of the
words ‘‘[i]t’s shameful,’’ the improprieties were not severe because
defense counsel did not object and the use of the words ‘‘executed’’
and ‘‘[i]t’s shameful’’ was not blatantly egregious in light of the facts
before the jury, the improprieties were infrequent because they consisted
of a few words following three full days of evidence, the statement
‘‘[i]t’s shameful’’ was not central to a critical issue in the case, the
curative measures employed by the court, including instructions to the
jury on multiple occasions throughout both the trial and closing argu-
ment that closing argument was not to be considered as evidence, were
adequate, and the state’s case was strong enough so that it was not
reasonably likely that the jury’s verdict would have been different if the
prosecutor had not used the word ‘‘executed’’ and the phrase ‘‘[i]t’s
shameful.’’
Argued September 5—officially released November 19, 2019
Procedural History
Substitute information charging the defendant with
the crimes of murder, possession of narcotics with
intent to sell and criminal possession of a revolver,
brought to the Superior Court in the judicial district of
Hartford, where the defendant entered a plea of guilty
to the charges of possession of narcotics with intent
to sell and criminal possession of a revolver; thereafter,
the charge of murder was tried to the jury before D’Ad-
dabbo, J.; subsequently, the court denied the defen-
dant’s motion for a judgment of acquittal; verdict of
guilty; thereafter, the court denied the defendant’s
motion for judgment notwithstanding the verdict; judg-
ment of guilty in accordance with the verdict and plea,
from which the defendant appealed. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Anthony Pernell, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a. On appeal, the defendant claims that the prosecutor
committed prosecutorial improprieties in his closing
argument, which deprived the defendant of his due pro-
cess right to a fair trial. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. In March, 2015, the defendant; his mother, Gail
Grant (mother); and half brother, Christopher Grant
(Grant), resided in a three bedroom apartment located
at 48 Congress Street in Hartford (apartment). On
March 17, 2015, the defendant and Lilliana Restrepo,
the victim, were together in the defendant’s bedroom
smoking phencyclidine (PCP) while the victim got ready
for work. When the victim went to leave for work, the
defendant shot her with a revolver (gun) at close range
in the center of her forehead.
The defendant was taken into custody and inter-
viewed by the police.1 The defendant told the police
that the victim was his friend. He stated that the victim
was stressing about her son and that she wanted to
kill herself because the Department of Children and
Families took her son away. The defendant stated that
he took the gun out of a bag to show the victim, and
she was playing with it. The defendant said that he tried
to stop her, but he accidentally pulled the trigger when
he grabbed the gun from her. He claimed that it went
off because the victim already had cocked the gun. The
defendant stated that he was standing in front of the
victim when the gun went off. He also stated: ‘‘I wasn’t
giving her the gun when I shot her in the head. . . . I
tried grabbing the gun from her . . . and the shit went
off. I told you, it’s kind of . . . man, that’s why I said
it, it was just kind of strange. And then . . . I feel like
they probably wouldn’t believe . . . me . . . that’s
why I kind of . . . made it look like she killed herself.
. . . Like, actually she had the gun aimed, I grabbed.
. . . Do you understand what I’m saying?’’ The defen-
dant admitted that he put the gun in the victim’s hand
to make it look like she shot herself. He also admitted
that he did not call an ambulance after the victim
was shot.
The detectives attempted to take the defendant’s writ-
ten statement. During that discussion of the events, the
defendant stated: ‘‘I was dirty with drugs . . . basically
that’s why I came up with this story. . . . I just don’t
want to get involved in this shit at all. I was trying to
keep myself cleared . . . because I had drugs on me,’’
and ‘‘I just said that because I had the drugs on me.
. . . I don’t know really what happened. I came and
checked my phone . . . I went outside to make a cou-
ple [drug] sales. I came back, and I found her like that.’’
The defendant claimed that he told the police that he
had shot the victim to cover up that he had drugs on
his person. After that exchange, the detectives left the
interview room. In their absence, the defendant
knocked on the interview room door and, when the
detectives opened the door, the defendant said: ‘‘I just
want to tell you guys the truth, man, because I know
you won’t believe me . . . . I grabbed the gun by acci-
dent, man. I know y’all wouldn’t believe me, man.’’ The
defendant claimed that this was the truth.
The defendant was arrested and charged with mur-
der, possession of narcotics with intent to sell, and
criminal possession of a revolver.2
Both the defendant and Grant testified at trial. Their
respective testimonies are relevant to our evaluation
of the defendant’s claims on appeal and are, therefore,
summarized herein. The defendant testified that when
he and the victim were smoking in his bedroom, the
victim exchanged a series of phone calls with her
mother to arrange for a ride to work. After the victim
told her mother that she would find her own ride to
work, a heated conversation ensued between the victim
and her mother. The defendant further testified that
the victim asked him if he would be there for her as a
friend, and that she also expressed that she was getting
emotionally close to the defendant. The defendant testi-
fied that the victim said she felt stupid and ugly, and
so the defendant told her that he would be there for
her in the best way that he could. The defendant testified
that, after that exchange, the victim stated that ‘‘she
was tired of everybody’’ and started texting. At that
time, the defendant testified that he looked for a CD-
ROM to play to calm her down because she was aggra-
vated from the phone call and disappointed that the
defendant did not realize how she felt toward him emo-
tionally. The defendant further testified that the victim,
who the defendant called Lill, took a gun from the
defendant’s closet and that: ‘‘I said, what you got in
your hand? I’m like, Lill, and this is what I said, what
the fuck are you doing? She like, no, I’m tired. . . .
You ain’t right. . . . I said, what you talking about?
Then, at this time, I’m standing up because she got a
gun in her hand and thought . . . maybe she [was]
going to shoot me or she might kill herself . . . .’’ The
defendant continued: ‘‘I ask her, what the fuck she
doing. She just said she was tired of everybody and I’m
not right. And I said, Lill, what you doing? She kicked
the handle back. I said, Lill, you can’t do this. We in
my mother’s house. I said, we all go to jail if you do
this. At this time, she started putting the gun up like
this, and I got closer. By the time she had it to her head,
I pulled it back, she put it in the other hand and it went
off. And then it dropped.’’ The defendant testified that
he paced in his room, and that he then picked the gun
up and put it on his bed. Then he went into Grant’s
adjacent bedroom and woke him up.
Grant testified that the defendant and the victim were
friends, and that their relationship may have been sex-
ual in exchange for drugs. Grant testified that on the
day of the shooting, the defendant came into his room,
woke him from sleep, and said that he had done some-
thing wrong and shot the victim. Grant further testified
that he asked the defendant if he was joking, and the
defendant could not clarify, and so the defendant told
Grant to go in the next room and look for himself. They
went into the defendant’s bedroom together, where
Grant observed the victim lying with her head back in
a basket. Grant testified that he checked the victim’s
pulse on her left arm. He testified that the defendant
then ‘‘showed me that he had shot her’’ and that
‘‘[b]ecause her face was facing the other direction to
the side, I didn’t see the bullet wound at first, and he
showed me that it was there.’’ It was at that time that
Grant learned that the victim was dead. Grant asked
the defendant what happened, but the defendant could
not answer him. They stayed in the defendant’s bed-
room for about fifteen minutes. Grant testified that,
after fifteen minutes, they stepped into the hallway,
where they stayed for twenty to forty minutes. After
that time, the defendant went back into the bedroom
to try and wake the victim up. Grant had to pull the
defendant off the victim and close the door to the bed-
room. Grant testified that the defendant then received
a call to make a drug sale and that he left the apartment.
When the defendant returned from his drug sale,
Grant testified that he and the defendant made their
way back to the defendant’s bedroom. According to
Grant, the defendant suggested at that time that ‘‘he
makes it look like a suicide.’’ Grant told the defendant
that that would not be the right thing to do, and he
turned away from the defendant’s bedroom. The defen-
dant testified that, when Grant left the bedroom, ‘‘I sat
on the bed, and I started thinking, just started looking
at her. I didn’t know what to do. I just sit there for a
minute and then my mind start racing like, man, when
I tell them this, they ain’t never going to believe me.
So, I just started clicking like, I said, man, my story,
they ain’t going to believe this, so I put the gun in her
hand to make it look like what it was. I tried to grab,
but it went off.’’ The defendant further testified that he
saw that the victim’s mother was calling the victim’s
cell phone again, but he did not answer the phone. The
defendant removed the cell phone from the victim’s
hand and placed the gun in her hand.
Grant called his girlfriend, mother, and uncle, and
his mother called the police. The responding police
officer, Dominick Agostino, testified that, upon entering
the apartment, he heard Grant on the telephone stating:
‘‘He shot her. He shot her. I can’t believe this.’’ Agostino
observed the defendant frantically scan the area and
look for a place to escape but was unable to do so.
On the basis of the evidence presented at trial, the
jury found the defendant guilty of murder in violation
of § 53a-54a, and the court accepted the jury’s verdict.
The defendant was sentenced to a term of fifty years
of incarceration. This appeal followed. Additional facts
will be set forth as necessary.
On appeal, the defendant claims that the state vio-
lated his due process right to a fair trial when the prose-
cutor committed six separate improprieties during clos-
ing argument. He argues that the prosecutor expressed
personal opinions, discussed facts not in evidence, and
appealed to the jurors’ emotions. The defendant con-
tends that his intent when the victim was shot was ‘‘the
key issue in this case,’’ and that the claimed improprie-
ties were harmful because the state’s case was weak.
The state concedes that two of the prosecutor’s state-
ments were improper but argues that they did not
deprive the defendant of his due process right to a
fair trial. We conclude that, notwithstanding the state’s
concessions, even if two of the prosecutor’s remarks
were improper, they did not deprive the defendant of
his due process right to a fair trial.
We first set forth the relevant legal principles govern-
ing our review.3 It is often said that ‘‘[w]hile [the prose-
cutor] may strike hard blows, he is not at liberty to
strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring
about a just one.’’ (Internal quotation marks omitted.)
State v. Rowe, 279 Conn. 139, 159, 900 A.2d 1276 (2006),
quoting Berger v. United States, 295 U.S. 78, 88, 55 S.
Ct. 629, 79 L. Ed. 1314 (1935).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . .
‘‘[O]ur determination of whether any improper con-
duct by the [prosecutor] violated the defendant’s fair
trial rights is predicated on the factors set forth in State
v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)],
with due consideration of whether that [impropriety]
was objected to at trial. . . . These factors include: [1]
the extent to which the [impropriety] was invited by
defense conduct or argument . . . [2] the severity of
the [impropriety] . . . [3] the frequency of the [impro-
priety] . . . [4] the centrality of the [impropriety] to
the critical issues in the case . . . [5] the strength of the
curative measures adopted . . . and [6] the strength of
the state’s case.’’ (Citations omitted; internal quotation
marks omitted.) State v. Payne, 303 Conn. 538, 560–61,
34 A.3d 370 (2012). ‘‘The question of whether the defen-
dant has been prejudiced by prosecutorial [impropriety]
. . . depends on whether there is a reasonable likeli-
hood that the jury’s verdict would have been different
absent the sum total of the improprieties.’’ (Internal
quotation marks omitted.) State v. Ross, 151 Conn. App.
687, 700, 95 A.3d 1208, cert. denied, 314 Conn. 926,
101 A.3d 271 (2014). ‘‘Under the Williams general due
process standard, the defendant has the burden to show
both that the prosecutor’s conduct was improper and
that it caused prejudice to his defense.’’ State v. A. M.,
324 Conn. 190, 199, 152 A.3d 49 (2016). ‘‘The two steps
of [our] analysis are separate and distinct, and we may
reject the claim if we conclude [that] the defendant has
failed to establish either prong.’’ State v. Danovan T.,
176 Conn. App. 637, 644, 170 A.3d 722 (2017), cert.
denied, 327 Conn. 992, 175 A.3d 1247 (2018).
I
PROSECUTORIAL IMPROPRIETY
The defendant claims that the prosecutor made six
improper remarks in closing argument. More specifi-
cally, the defendant claims that the prosecutor improp-
erly (1) opined on how someone should act during a
police interview; (2) opined on what the prosecutor
would have said to the victim’s mother when she called;
(3) speculated that the defendant might have gone
through the victim’s purse and shamefully blamed her
death on her child custody problem; (4) asserted that
the defendant’s version of the events conflicted with
the gunshot residue evidence; (5) stated that the victim
was ‘‘dead in the defendant’s bedroom with a kill shot
to her forehead’’; and (6) argued that the victim was
‘‘executed.’’ We address each of these remarks in turn
to determine whether the prosecutor committed impro-
priety in his closing argument.
A
On appeal, the defendant claims that the prosecutor
improperly opined on how someone should act during
a police interview because there was no evidence as
to how a grieving person typically would respond when
questioned by the police hours after witnessing his
friend’s death and also because there was no evidence
about how the defendant’s ingestion of PCP could have
affected his behavior during the police interview.4 The
defendant argues that the remark may have caused the
jury to assume that the defendant did not behave appro-
priately because the prosecutor’s question as to
whether the defendant seemed upset presupposed that
only a guilty person would calmly answer police ques-
tions. We disagree.
The defendant’s claim is fundamentally flawed
because the prosecutor did not offer the opinions that
the defendant asserts that he did. The challenged state-
ments are not improper because the prosecutor merely
asked the jurors to consider the defendant’s demeanor
during the police interview and argued the inference
that the defendant was calm during that interview.
Counsel is not prohibited from asking the jurors ques-
tions that prompt them to employ their common sense
in considering the evidence. ‘‘[J]uries are not required
to leave common sense at the courtroom door . . . .’’
(Internal quotation marks omitted.) State v. Lopez, 93
Conn. App. 257, 267, 889 A.2d 254 (2006), aff’d, 281
Conn. 797, 917 A.2d 949, aff’d sub nom. State v. Ken-
nedy, 281 Conn. 801, 917 A.2d 947 (2007). ‘‘[J]urors, in
deciding cases, are not expected to lay aside matters
of common knowledge or their own observations and
experiences, but rather, to apply them to the facts as
presented to arrive at an intelligent and correct conclu-
sion. . . . Therefore, it is entirely proper for counsel
to appeal to a jury’s common sense in closing remarks.’’
(Internal quotation marks omitted.) State v. Elmer G.,
176 Conn. App. 343, 376, 170 A.3d 749 (2017), aff’d,
333 Conn. 176, 214 A.3d 852 (2019). Furthermore, the
declaratory statements contained within this chal-
lenged remark—‘‘Seems awful calm when he was inter-
viewed by the police hours later. It also seems that
every question presented to him was coolly and with
calculation responded to.’’—are inferences reasonably
drawn from the video of the police interview that was
entered into evidence. ‘‘[I]t is not improper for the pros-
ecutor to comment upon the evidence presented at trial
and to argue the inferences that the jurors might draw
therefrom . . . .’’ (Internal quotation marks omitted.)
State v. Stevenson, 269 Conn. 563, 583, 849 A.2d 626
(2004). The jurors reasonably could have inferred from
the video of the police interview that the defendant, as
asserted by the prosecutor, was calm, cool, and calcu-
lating at the time of the interview. Our review of the
evidence supports the prosecutor’s argument that the
defendant was not agitated or upset during the course
of his time in the interview room. To the contrary, he
slept and ate macaroni and cheese when he was alone,
and offered the detectives multiple, differing stories
with respect to how the victim was shot. The defendant
even told the police, during his interview, which the
jury heard, that he ‘‘came up with this story.’’ Because
the prosecutor properly prompted the jurors with ques-
tions to consider the evidence and simply observed that
the defendant was calm and calculating at the time of
the police interview, we conclude that this statement
was not improper.
B
The defendant next claims that the prosecutor
improperly interjected his own experience by stating
what he would have done if he had found himself in
the defendant’s circumstances.5 In support of this claim,
the defendant cites to State v. McCarthy, 105 Conn.
App. 596, 630–31, 939 A.2d 1195, cert. denied, 286 Conn.
913, 944 A.2d 983 (2008), a case in which this court held
that the prosecutor’s attempt to attack the defendant’s
photographic evidence by referring to a personal experi-
ence—a failed attempt to accurately photograph a
bird—was improper because there was no evidence at
trial to establish that the cameras used by investigators
for the defense produced disappointing results. In the
present case, the prosecutor argued that the defendant
did not answer the cell phone call from the victim’s
mother following the shooting because he murdered
the victim and was in ‘‘protection mode.’’ In making
this argument, he highlighted the defendant’s testimony
that the victim was suicidal after having a heated con-
versation with her mother and stating that she was tired
of everybody. The prosecutor continued: ‘‘Now, ask
yourselves . . . can you put yourselves in that posi-
tion? . . . I . . . would have a few choice words for
her mother at that point in time if I just witnessed my
friend killing herself or dead after having tried to [kill]
herself.’’ We are not persuaded by the defendant’s claim
that such a statement constituted an improper personal
anecdote, as was the case in McCarthy. In the present
case, the prosecutor’s statement was based squarely on
the evidence that was heard by the jury, including the
defendant’s testimony that he failed to answer the vic-
tim’s cell phone when her mother called after the shoot-
ing, as well as his testimony regarding the victim’s
heated conversation with her mother that led to her
supposedly picking up the gun and holding it to her
head to attempt suicide.
The defendant’s argument seems to imply, however,
that the prosecutor’s mere use of the words ‘‘I . . .
would have’’ indicates that the statement was based on
the prosecutor’s own experience. We disagree. ‘‘The
[prosecutor] should not be put in the rhetorical strait-
jacket of always using the passive voice, or continually
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. Stevenson,
supra, 269 Conn. 583–84. In State v. Bell, 283 Conn. 748,
773, 931 A.2d 198 (2007), our Supreme Court concluded
that it was not improper for the prosecutor to ask the
jurors to put themselves in the defendant’s shoes to
evaluate how a reasonable person would act under the
circumstances. In the present case, the prosecutor’s
statement about what he would have done was the
rough equivalent of asking the jurors what they would
have done in the defendant’s shoes after the shooting.
We, therefore, conclude that this statement did not con-
stitute prosecutorial impropriety.
C
The defendant claims that the prosecutor improperly
speculated that the defendant ‘‘shameful[ly]’’ went
through the victim’s purse after her death and found
letters regarding child custody issues. The defendant
also claims that this statement improperly appealed to
the jurors’ emotions. We disagree with the defendant.
The context of closing argument in this case is rele-
vant to the analysis of this claim and is, therefore, sum-
marized herein. The prosecutor argued in closing that
the defendant’s story—that the victim was suicidal and
trying to kill herself—was fabricated. The prosecutor
supported that argument with the inconsistencies
between the defendant’s statements to the police and
his testimony at trial.6 Particularly, the prosecutor ques-
tioned the defendant’s attribution of the victim’s sui-
cidal intentions to child custody issues when the two
had not actually discussed those issues on the day she
was shot. In rebuttal, defense counsel argued that there
was a letter from the victim’s child custody attorney in
her purse, which corroborated the defendant’s story
about the victim’s child custody issues.7 In response,
the prosecutor suggested to the jury that the defendant
pointed to the victim’s child custody issue because he
went through the victim’s purse following the shooting.8
Considering the sequence of the argument, it is unavail-
ing for the defendant to now claim that the prosecutor’s
statement, to rebut the defendant’s argument, was
improper. ‘‘[T]he state may properly respond to infer-
ences raised by the defendant’s closing argument.’’
State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288
(1993). Additionally, notwithstanding the fact that the
prosecutor’s comment was a proper response to the
inference raised by defense counsel in closing argu-
ment, there was sufficient evidence in the record to
support the inference that the defendant went through
the victim’s purse, including the defendant’s affirmative
efforts to portray the victim’s death as a suicide, as well
as the time and opportunity he had to do so after the
shooting and before the police arrived. Accordingly, we
do not conclude that the prosecutor’s remark was
improper.
The state does, however, concede that the prosecu-
tor’s particular statement of ‘‘[i]t’s shameful’’ was a
gratuitous and improper expression of personal opin-
ion. On the basis of the state’s concession, we will
assess whether the prosecutor’s use of such words
deprived the defendant of his due process right to a
fair trial in part II of this opinion.
D
The defendant also claims that the prosecutor’s state-
ment that the defendant’s version of the events contra-
dicted the gunshot residue (residue) evidence was
improper because it was not properly derived from the
evidence presented. He argues that the prosecutor’s
remark went beyond what the jury fairly could infer
because the residue expert did not state with absolute
certainty that the victim’s hands could not have been
on the gun at the time of discharge. We, however, agree
with the state’s contention that it was based on the
evidence and was appropriate advocacy.
The following additional facts are relevant to the
evaluation of this claim. The defendant claimed that
the gun was in both his and the victim’s hands at the time
of discharge. Fung Kwok, a chemist at the Connecticut
state forensics laboratory, testified as an expert with
respect to the residue evidence. He stated that such
residue is ‘‘a mixture of gasses and particle from a gun
fire’’ and those major elements are lead, antimony, and
barium. Kwok testified that if all three elements are
found in the same particle, then that is residue. If two
out of the three elements are found, then it is consistent
with residue. If only one of the three elements is found,
then he cannot identify it as residue. Kwok testified that
if he finds residue, then the individual fired a firearm,
handled a recently discharged firearm, which caused
transfer of residue, or was in close proximity to a fire-
arm when it discharged. Kwok analyzed residue kits
taken from the defendant’s and the victim’s hands, and
found all three residue elements on the defendant’s left
palm, and two out of three elements on the back of his
left hand and right palm. He only found lead particles
on the victim’s hands. The prosecutor questioned Kwok:
‘‘Are you able to have an opinion that failure to find all
three elements on [the victim’s] hands would allow you
to conclude that her hands were not in close proximity
to the gun?’’ In response, Kwok stated, ‘‘[or] maybe
covered up.’’ The prosecutor also asked, in considering
the wound and Kwok’s opinion on the close range of
the shot, ‘‘if [the victim’s] hands were exposed, you
would’ve expected to find . . . the three elements?’’
Kwok responded, ‘‘[y]es.’’
‘‘[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.’’
(Internal quotation marks omitted.) State v. Stevenson,
supra, 269 Conn. 583. In State v. Jones, 115 Conn. App.
581, 597–600, 974 A.2d 72, cert. denied, 293 Conn. 916,
979 A.2d 492 (2009), this court concluded that it was
not necessarily improper for the prosecutor to argue
that the DNA evidence found belonged to the defendant,
where the evidence presented was that the defendant
was included as a contributor to the DNA profile, if it
was a reasonable inference to draw in light of the evi-
dence as a whole. See State v. Brett B., 186 Conn. App.
563, 583–85, 200 A.3d 706 (2018), cert. denied, 330 Conn.
961, 199 A.3d 560 (2019).
The present case is similar to Jones insofar as it was
reasonable for the jury to infer that the victim did not
have her hands on the gun at the time of discharge due
to the lack of residue on her hands, although the residue
expert did not testify to that fact with absolute certainty.
‘‘It is the right and duty of the jury to determine . . .
what weight, if any, to lend to the testimony of a witness
and the evidence presented at trial.’’ (Internal quotation
marks omitted.) State v. Osbourne, 138 Conn. App. 518,
534, 53 A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716
(2012). The prosecutor properly argued a fair inference
from the evidence to the jury. Accordingly, we do not
conclude that this remark was improper.
E
The defendant next claims that the prosecutor’s use
of the words ‘‘kill shot’’9 improperly appealed to the
jurors’ sympathies and emotions. In support of that
claim, the defendant argues that ‘‘kill shot’’ implies
‘‘more than mere murder . . . .’’ We disagree with
the defendant.
‘‘A prosecutor is not precluded from using descriptive
language that portrays the nature and enormity of the
crime when supported by the evidence.’’ State v.
Andrews, 313 Conn. 266, 301, 96 A.3d 1199 (2014) (court
held that to extent that prosecutor’s language appealed
to jurors’ emotions, it did so because of nature of crime
and not because of terminology used by prosecutor).
Although characterizing the victim’s gunshot wound as
a ‘‘kill shot’’ was crude slang and arguably carried an
emotional charge, it was not improper because the
words used were factually accurate and supported by
the evidence. The evidence supports the state’s con-
tention that the defendant, without any known or appar-
ent motive, murdered the victim by shooting her in the
center of her forehead from a distance of fewer than
eighteen to twenty-four inches. On the basis of our
review of the record, we conclude that the prosecutor’s
use of the words ‘‘kill shot’’ was not improper because
the victim was in fact killed by a gunshot to her fore-
head, and the evidence presented supports the infer-
ence that the victim’s death was intentionally caused
by the defendant.
F
The defendant’s final claim is that the prosecutor’s
use of the word ‘‘executed’’ improperly appealed to the
jurors’ sympathies and emotions. The state concedes
that the prosecutor’s use of the word ‘‘executed’’ was
improper on the basis of State v. Albino, 312 Conn. 763,
97 A.3d 478 (2014). In Albino, our Supreme Court held
that the prosecutor’s statement that the defendant ‘‘exe-
cut[ed]’’ the victim improperly appealed to the jurors’
emotions, passions, and prejudices because ‘‘the defen-
dant’s evidence was deemed sufficient to warrant jury
instructions on lesser included offenses inconsistent
with a wholly unprovoked act of brutality that has been
deemed by courts to justify the use of such terms.’’ Id.,
774. In the present case, the trial court instructed the
jury as to lesser included offenses.10 Although the record
does not reveal the trial court’s reason for its decision
to issue those instructions, the jury was nonetheless
instructed to consider lesser included offenses, which
are naturally ‘‘inconsistent with a wholly unprovoked
act of brutality . . . .’’ On the basis of the trial court’s
instruction, Albino requires us to conclude in the pres-
ent case that the prosecutor’s use of the word ‘‘exe-
cuted’’ was improper.11
II
DUE PROCESS
We now assess whether the prosecutor’s use of the
word ‘‘executed’’ and the statement ‘‘[i]t’s shameful’’
deprived the defendant of a fair trial. ‘‘In determining
whether prosecutorial [impropriety] was so serious as
to amount to a denial of due process, [our Supreme
Court], in conformity with courts in other jurisdictions,
has focused on several factors. Among them are [1]
the extent to which the [impropriety] was invited by
defense conduct or argument . . . [2] the severity of
the [impropriety] . . . [3] the frequency of the [impro-
priety] . . . [4] the centrality of the [impropriety] to
the critical issues in the case . . . [5] the strength of the
curative measures adopted . . . and [6] the strength of
the state’s case.’’ (Citations omitted.) State v. Williams,
supra, 204 Conn. 540.
We first note that defense counsel did not invite the
prosecutor’s use of the word ‘‘executed,’’ but that coun-
sel did invite the prosecutor’s statement of ‘‘[i]t’s shame-
ful.’’ Defense counsel, however, did not object to either
the prosecutor’s use of the word ‘‘executed’’ or the
statement ‘‘[i]t’s shameful,’’ and ‘‘it [is] highly significant
that defense counsel failed to object to any of the
improper remarks, request curative instructions, or
move for a mistrial.’’ State v. Thompson, 266 Conn. 440,
479, 832 A.2d 626 (2003); see also State v. Payne, supra,
303 Conn. 568 (‘‘[w]hen no objection is raised at trial,
we infer that defense counsel did not regard the remarks
as ‘seriously prejudicial’ at the time the statements were
made’’). ‘‘Beyond defense counsel’s failure to object, in
determining the severity of prosecutorial impropriety,
we look to whether the impropriety was blatantly egre-
gious or inexcusable.’’ State v. Fauci, 282 Conn. 23, 51,
917 A.2d 978 (2007). Because defense counsel did not
object and the use of the sole words ‘‘executed’’ and
‘‘[i]t’s shameful’’ was not blatantly egregious in light of
the facts before the jury, we do not conclude that the
impropriety was severe.
The impropriety was infrequent; it consisted of a few
words following three full days of evidence and was
made during lengthy closing argument. See, e.g., State
v. Bermudez, 274 Conn. 581, 600–601, 876 A.2d 1162
(2005) (court found improper remarks infrequent where
remarks consisted of only two instances of brief dura-
tion, which was not grossly egregious when viewed in
context of entire trial). Although the use of the word
‘‘executed’’ went to the central issue of intent, the state-
ment of ‘‘[i]t’s shameful’’ did not because it pertained
to the possibility that the defendant might have gone
through the victim’s purse. Indeed, we conclude that
the prosecutor’s characterizing the defendant’s having
gone through the victim’s purse as ‘‘shameful,’’ under
the circumstances of this murder trial, is rather
innocuous.
The trial court also instructed the jury on multiple
occasions throughout both the trial and closing argu-
ment that closing argument is not to be considered as
evidence and that ‘‘[w]hat [counsel] have said to you
is their way of presenting to you what they think the
evidence has proven or has not proven, as the case may
be, but it is not evidence. If your recollection of the
facts differs [from] what the attorneys have presented,
it’s your recollection that controls.’’ The trial court did
not specifically address the use of the word ‘‘executed’’
because there was no objection by the defense. In light
of the circumstances, the curative measures employed
by the court were adequate.
Finally, the state’s case was strong enough so that it
is not reasonably likely that the jury’s verdict would
have been different if the state had not used the word
‘‘executed’’ and the phrase ‘‘[i]t’s shameful.’’ The defen-
dant’s inconsistent story as to what actually occurred
in his bedroom, the residue evidence, and the location
of the victim’s wound all undermined the defendant’s
theory that he accidentally killed the victim when he
tried to stop her from committing suicide.
On the basis of our analysis of these six factors, we
have no difficulty concluding that the defendant failed
to prove that the prosecutor’s use of the word ‘‘exe-
cuted’’ and the statement ‘‘[i]t’s shameful’’ was a harm-
ful error that deprived him of his due process right to
a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The video recording of that interview was admitted into evidence, along
with a corresponding transcript.
2
The defendant pleaded guilty to the possession of narcotics with intent
to sell and criminal possession of a revolver charges prior to trial.
3
Although the defendant did not object to the remarks he challenges on
appeal, we still review his claims because ‘‘a defendant who fails to preserve
claims of prosecutorial [impropriety] need not seek to prevail under the
specific requirements of [State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d
1188 (2015)], and, similarly, it is unnecessary for a reviewing court to apply
the four-pronged Golding test.’’ (Internal quotation marks omitted.) State
v. Turner, 181 Conn. App. 535, 556, 187 A.3d 454, cert. granted, 330 Conn.
909, 193 A.3d 48 (2018). We note, however, that defense counsel’s failure
to object is highly significant and indicates lack of severity of the alleged
impropriety, as we discuss later in this opinion. See State v. Thompson, 266
Conn. 440, 479, 832 A.2d 626 (2003).
4
The defendant specifically challenges the following statement: ‘‘ ‘Oh,
bleep, now I’m in trouble.’ That is the response of a person and that’s what
his response was. Because I ask you to consider, how upset was he? How
upset was he that . . . as he testified, his dear friend . . . just got shot in
his presence? Seems awful calm when he was interviewed by the police
hours later. It also seems that every question presented to him was coolly
and with calculation responded to. Ask yourselves if he had any degree of
upset when he was talking to the police on March 17, 2015.’’
5
The defendant claims that the entirety of the following remark by the
prosecutor was improper: ‘‘I want to draw you to another thing the defendant
said. He said even after it was all done and he came back, just to look at
[the victim], the phone went off and he couldn’t . . . get to the point where
he could answer the phone when he saw that it was [the victim’s] mother
calling. Now, ask yourselves, ladies and gentlemen, can you put yourselves
in that position? If we believe what the defendant said . . . [the victim]
just had a horrible conversation with her mother where she hopes she’s
going to die, with gun in hand she says, I’m sick of all these people. Something
goes down, [the victim] gets shot in the head, and then there is a phone
call from her mother. I, ladies and gentlemen, would have a few choice
words for her mother at that point in time if I just witnessed my friend
killing herself or dead after having tried to [kill] herself. He didn’t answer
the phone because he killed her. He didn’t answer the phone because he’s
in protection mode. He planted the gun . . . in . . . her right hand because
he’s in protection mode.’’
6
The prosecutor argued: ‘‘[A]ll [the defendant] says through that [police]
interview is, [the victim] had child custody issues. Yet, he acknowledges
on the stand yesterday that we never discussed and she never stressed
about child custody issues during that overnight on March 17, 2015. It’s out
of whole cloth . . . . She wasn’t trying to kill herself.’’
7
Defense counsel stated: ‘‘[Two and one-half] years ago [the defendant
is] talking about [the victim is] stressing about her kid. She’s stressing about
the custody of her kid. And he kept saying that. He kept saying that. Well,
how the hell do we know if she was stressing about her kid? Ladies and
gentlemen . . . Lead Detective [Anthony] Rykowski, do you recall his testi-
mony when I asked him about that Coach bag . . . . And what was one
of the pieces of correspondence in that bag? . . . [The victim’s] bag. A
letter from her child custody attorney. Gee, this guy with a ninth grade
education put all that together and came up with this horrible story?’’
8
The prosecutor stated: ‘‘How you’re left with evidence because the thing
is . . . you come back to what did [the defendant] say, and once you dismiss
his version of events, as it’s contradicted by his own statements . . . and
it’s contradicted by the gunshot residue evidence, [the victim’s] hands
weren’t up. Her hands weren’t next to the gun. . . . What’s interesting about
that letter that may exist, that was testified to, is who was alone with the
dead [victim] for about forty minutes, possibly thinking about what he could
say to the police as to what stressed her out? Because, again, you got to
[juxtapose] all of that with what [the defendant] told you on the stand
yesterday; that’s the conversation that led [the victim] to her suicidal brink.
Yet, he never told any of that to the police, but what he shares with the
police is there’s custody issues. Custody issues, that subject matter, is actu-
ally sitting in her purse while he’s alone, and, again, ladies and gentlemen,
your minds can run rampant at this point, he already admitted he put a gun
in hand . . . would you doubt he went into her purse to see what made
her tick? It’s shameful. It’s shameful, but what you are left with, again, ladies
and gentlemen, is the circumstances of her death, an intentional killing at
close range to her forehead.’’
9
The prosecutor argued to the jury that ‘‘[defense counsel] will say to
you . . . that since no motive evidence has been presented to you, [the
victim] was not dead in the defendant’s bedroom with a kill shot to her
forehead.’’
10
The trial court instructed the jury as to the lesser included offenses of
intentional manslaughter, reckless manslaughter, and criminally negligent
homicide.
11
We do, however, note that other states tend to focus on the overall
strength of the evidence, instead of whether an instruction on lesser included
offenses is given, when determining whether a prosecutor’s use of the words
‘‘executed’’ or ‘‘in cold blood’’ was improper. Our Supreme Court’s decision
in Albino outlines certain cases that take this alternative approach: ‘‘Com-
monwealth v. Murphy, 442 Mass. 485, 496, 813 N.E.2d 820 (2004) (statement
that victims were murdered in cold blood not improper where evidence
permitted inference that murders were unprovoked, senseless, and brutal),
People v. Walton, Docket No. 259584, 2006 WL 2033999, *2 (Mich. App. July
20, 2006) (prosecutor’s characterization of offense as execution not improper
because clearly supported by evidence that defendant and accomplices made
unarmed victims lie down on floor and then shot them), and State v. Harris,
338 N.C. 211, 229, 449 S.E.2d 462 (1994) (at trial for first degree murder
involving calculated armed robbery and unprovoked killing, it was not
improper for prosecutor to refer to defendant as cold-blooded murderer).’’
(Internal quotation marks omitted.) State v. Albino, supra, 312 Conn. 775.