State v. Chankar , 173 Conn. App. 227 ( 2017 )

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STATE OF CONNECTICUT v. MARWAN CHANKAR
(AC 37782)
Alvord, Sheldon and Norcott, Js.
Argued March 8—officially released May 16, 2017
(Appeal from Superior Court, judicial district of New
London, Jongbloed, J.)
Jennifer B. Smith, assigned counsel, for the appel-
lant (defendant).
David J. Smith, senior assistant state’s attorney, with
whom, on the brief, was Michael L. Regan, state’s attor-
ney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Marwan Chankar,
appeals from the judgment of conviction, rendered after
a jury trial, of arson in the first degree in violation of
General Statutes § 53a-111 (a) (2) and criminal mischief
in the first degree in violation of General Statutes § 53a-
115 (a) (1). The jury found the defendant not guilty
of attempt to commit murder in violation of General
Statutes §§ 53a-49 (a) (2) and 53a-54a. On appeal, the
defendant claims that (1) his fifth amendment and four-
teenth amendment privilege against self-incrimination
was violated when police officers conducted a custodial
interrogation of him without advising him of his
Miranda rights;1 (2) there was insufficient evidence
presented at trial to support his conviction of arson in
the first degree; and (3) the prosecutor violated his right
to a fair trial by committing certain improprieties during
closing argument. We affirm the judgment of the trial
court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
In the summer of 2011, the defendant frequently spent
time smoking crack cocaine with Henry Wickham and
Anthony Thomas, who resided in the same three-story
multifamily house on Rockwell Street in Norwich.2
Wickham resided in the sole third floor apartment, and
Thomas resided in Apartment 2A, which was located
on the second floor toward the back of the house and
below Wickham’s apartment. While ‘‘hanging out’’
together, the defendant and Wickham would smoke
crack cocaine together. On or about July 7, 2011, the
defendant helped Thomas move out of Apartment 2A.
Because the defendant was homeless and nobody was
living in Apartment 2A, the defendant began sleeping
there.
On July 9, 2011, at approximately 8:30 p.m., Wickham
confronted the defendant about breaking into his third
floor apartment when he was not present.3 Wickham
told the defendant to leave the house, and the defendant
did so after retrieving some personal items from Apart-
ment 2A. The defendant was ‘‘very upset and angry and
pissed off’’ about his argument with Wickham so he
walked to a nearby package store to purchase some
alcohol. The package store closed at 9 p.m. and was
approximately a twenty-minute walk from Wickham’s
house. After having a couple of drinks, the defendant
returned to Wickham’s house. He took charcoal lighter
fluid from Wickham’s porch and started a fire in Apart-
ment 2A.
At approximately 10 p.m., Darrell Wommack, who
resided in Apartment 2B, smelled something burning.
When he walked into his kitchen, he saw a fire glowing
on the trees behind the house. Wommack then went to
his porch and realized that Apartment 2A ‘‘was on fire
really bad.’’ Wommack woke his roommate and told
him to call the fire department. Wommack ran to Apart-
ment 2A and began banging on the door to alert anyone
inside to the fire. When nobody responded, Wommack
pushed open the door and black smoke billowed out
of the apartment, forcing him back into the hallway.
When Wommack fell back into the hallway, his room-
mate met him. Wommack told his roommate to leave
the house and proceeded upstairs to warn Wickham
about the fire. When Wickham did not answer the door,
Wommack opened it and found Wickham asleep in his
bed. Wommack woke Wickham, who initially appeared
to be ‘‘starstruck,’’ and the two men ran out of the house.
Thereafter, members of the fire department arrived.4
Meanwhile, after leaving Wickham’s house, the defen-
dant saw an acquaintance, Samantha Fidrych, across
the street. The defendant was unsure whether Fidrych
saw him, so he called her from a nearby pay phone.
During their conversation, the defendant told Fidrych
that Wickham’s house was on fire. Later, at about 11:30
p.m. or 12 a.m., the defendant called another friend,
Laura Wallace, and told her that something had hap-
pened and he needed to speak to her. Wallace told the
defendant to come to her house, and he arrived between
12 a.m. and 12:30 a.m. The defendant appeared worried
and upset, and Wallace asked him what was wrong.
The defendant told her about how Wickham had asked
him to leave his house and how, after having a couple
of drinks, he returned to the house and started a fire
on the second floor. The defendant remarked that when
he turned around as he was leaving, he was ‘‘really
surprised [the fire] took off so fast because it just looked
like daylight, it was so bright.’’
On July 26, 2011, police officers went to a methadone
clinic that the defendant frequented to interview him
about the fire. When the officers approached the defen-
dant, he said, ‘‘I know why you’re here.’’ The officers
asked why, and the defendant replied that they were
there ‘‘about the fire on Rockwell Street,’’ i.e., the loca-
tion of Wickham’s house. During their conversation,
the defendant admitted to being at Wickham’s house
on July 9, 2011, to arguing with Wickham over crack
cocaine, and to becoming ‘‘very upset and angry and
pissed off’’ at Wickham as a result. He maintained, how-
ever, that after Wickham told him to leave the house,
he went to a nearby package store to purchase some
alcohol and then spent the rest of the night with
Wallace.
The defendant also mentioned passing Fidrych about
one hour after leaving Wickham’s house and calling her
to tell her about the fire at Wickham’s house. When the
officers asked the defendant how he knew there was
a fire at that time,5 he initially stated that he did not
know but later claimed that Jonathon Bogue had told
him about the fire.6
During the interview, the officers questioned the
defendant about whether he ever cooked with Wickham
on Wickham’s charcoal grill on the third floor porch.
The defendant admitted that he had, but he stated that
he could not remember how they started the fire on
the grill. The defendant also correctly listed all of the
items stored on Wickham’s porch, with the exception
of the charcoal lighter fluid. When the officers asked
the defendant whether ‘‘he was actually responsible for
the fire, whether it be accidentally or on purpose,’’ the
defendant responded, ‘‘I can’t admit to it. I just can’t
have it.’’ Sometime thereafter, the defendant told Wal-
lace that he had told the police that he was with her
on the night of the fire and asked her to corroborate
his story.
The defendant was charged by way of a substitute
long form information with attempted murder, arson
in the first degree, and criminal mischief in the first
degree. The jury found the defendant guilty of arson in
the first degree and criminal mischief in the first degree,
and not guilty of attempted murder. The court sen-
tenced the defendant to a total effective term of seven-
teen years of imprisonment followed by six years of
special parole. This appeal followed.
I
We begin with the defendant’s claim that the trial
court violated his fifth and fourteenth amendment privi-
lege against self-incrimination by denying his motion
to suppress the statements that he made to the police
officers during the July 26, 2011 interview. In particular,
he argues that the court erred when it determined that
he was not in custody at the time he was interviewed.
We disagree.
The court found the following additional facts that
are relevant to the defendant’s claim. Officer Robert
Smith and Sergeant Peter Camp of the Norwich Police
Department were assigned to investigate the fire at
Wickham’s house.7 They developed information that the
defendant was responsible for the arson and that he
regularly attended the methadone clinic in Norwich. On
the morning of July 26, 2011, the officers went to the
clinic to see if the defendant arrived. Camp was parked
across the street near a cemetery and Smith was parked
in the clinic parking lot.
When the officers observed the defendant arrive by
bus and wait outside the clinic near a guardrail with
another individual, they approached the defendant. The
officers were dressed in plain clothes and, although
armed, neither officer drew his weapon. The defendant
told the other individual ‘‘words to the effect that he
would catch up with him later.’’ When the officers
approached the defendant, he said, ‘‘I know why you’re
here . . . .’’ The officers asked why, and the defendant
replied that they were there ‘‘about the fire on Rock-
well Street.’’
The officers asked the defendant if he would talk to
them about the fire, and he said that he would, but he
expressed his concern about being seen with the offi-
cers because he would be viewed as a ‘‘snitch.’’ The
officers asked the defendant if he would accompany
them to the Norwich Police Department, but the defen-
dant declined. The officers then suggested that they go
to the cemetery across the street, and the defendant
agreed. The officers returned to their respective vehi-
cles and drove to the back of the cemetery where they
looked around to make sure that they would not be
interrupting any services. The officers waited for the
defendant to walk to the location. During this time,
the officers wondered whether the defendant would
actually arrive. The defendant voluntarily walked to the
location at the back of the cemetery.
When the defendant arrived at the cemetery, the offi-
cers asked if they could search his backpack for weap-
ons, but the defendant said that he preferred that they
not do so. The officers then asked if they could put his
backpack in one of their cruisers for safety reasons
while they spoke, and the defendant agreed to that
request. Camp put the defendant’s backpack in his
cruiser. The officers asked the defendant questions
about the fire. During this discussion, the officers told
the defendant that ‘‘no matter what he told us, he was
free to leave at any time . . . .’’8
When the questioning became repetitive and the
defendant expressed his concern about being late to
meet his mother, the interview ended. The defendant
mentioned that he wanted to call his mother, and Camp
offered the defendant the use of his personal cell phone,
which the defendant used to arrange for his mother to
pick him up at the clinic.9 The officers returned the
defendant’s backpack, and the defendant left.
This interaction lasted no more than thirty to forty-
five minutes. At no time during this interview did the
officers advise the defendant of his Miranda rights.
Additionally, the officers never handcuffed, restrained,
or threatened the defendant.
On September 5, 2014, the defendant filed a motion
to suppress his statements, arguing that they were the
product of a custodial interrogation during which he
was not advised of his Miranda rights. On September
18 and October 8, 2014, suppression hearings were held.
The court heard the testimony of the defendant, his
mother, and Camp. On October 24, 2014, the court
issued an oral ruling denying the defendant’s motion.
The court credited Camp’s testimony. The court further
found that the defendant was not in custody at the time
of the interrogation and, therefore, concluded that he
was not entitled to Miranda warnings.
‘‘Under our well established standard of review in
connection with a motion to suppress, we will not dis-
turb a trial court’s finding of fact unless it is clearly
erroneous in view of the evidence and pleadings in the
whole record . . . . [When] the legal conclusions of
the court are challenged, [our review is plenary, and] we
must determine whether they are legally and logically
correct and whether they find support in the facts set
out in the court’s memorandum of decision . . . .
‘‘In order to establish that he was entitled to Miranda
warnings, a defendant must show that he was in custody
when he made the statements and that he made the
statements in response to police questioning. . . . In
assessing whether a person is in custody for purposes of
Miranda, the ultimate inquiry is whether a reasonable
person in the defendant’s position would believe that
there was a restraint on [his] freedom of movement of
the degree associated with a formal arrest. . . . Any
lesser restriction on a person’s freedom of action is not
significant enough to implicate the core fifth amend-
ment concerns that Miranda sought to address. . . .
‘‘In [State v. Mangual, 311 Conn. 182, 85 A.3d 627(2014)], we set forth the following nonexclusive list
of factors to be considered in determining whether a
suspect was in custody for purposes of Miranda: (1)
the nature, extent and duration of the questioning; (2)
whether the suspect was handcuffed or otherwise phys-
ically restrained; (3) whether officers explained that
the suspect was free to leave or not under arrest; (4)
who initiated the encounter; (5) the location of the
interview; (6) the length of the detention; (7) the number
of officers in the immediate vicinity of the questioning;
(8) whether the officers were armed; (9) whether the
officers displayed their weapons or used force of any
other kind before or during questioning; and (10) the
degree to which the suspect was isolated from friends,
family and the public.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Arias, 322 Conn. 170,
176–77, 140 A.3d 200 (2016).
After applying the Mangual factors to the facts in
this case, we conclude that a reasonable person in the
defendant’s position would not have believed that he
was in police custody of the degree associated with a
formal arrest. The entire exchange was informal in
nature and short in duration, lasting no more than thirty
to forty-five minutes. Although the location of the inter-
view secluded the defendant from the public,10 we note
that it was the defendant who requested to speak in a
more private location. The officers initially suggested
speaking at the Norwich Police Department but, when
the defendant declined, they suggested going across the
street to the cemetery. The defendant agreed to be
interviewed there. He then voluntarily walked over to
the back of the cemetery by himself.
In addition, at no point during this exchange was the
defendant handcuffed or otherwise physically
restrained. There were only two officers present for the
questioning. The officers were dressed in plain clothes,
and, although they were armed, they never drew their
weapons. The officers told the defendant a couple of
times that no matter what he said he was free to leave
at any time.11 Although the officers put the defendant’s
backpack in their cruiser during the interview, we do
not believe that a reasonable person in the defendant’s
position would have believed in these circumstances
that there was a restraint on his freedom of movement
of the degree associated with a formal arrest. The offi-
cers explained to the defendant that the reason they
wanted to put his backpack in one of their cruisers was
for safety reasons, and they only made this request after
the defendant expressed his preference that they not
search it for weapons. The defendant also agreed to
this request. We think that a reasonable person in this
situation would have believed that if he decided to end
the interview, as the officers told him he could do at
any time, the officers would return his backpack.
Considering the totality of the circumstances, the
court properly determined that the defendant was not
in custody and, therefore, a Miranda warning was
not required.
II
The defendant next claims that his conviction of
arson in the first degree must be reversed because ‘‘[t]he
state failed to present sufficient evidence to establish
beyond a reasonable doubt that [he] was the individual
responsible for setting the fire.’’ We disagree.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
We conclude that there was sufficient evidence for
the jury to find that the defendant was responsible for
the fire at Wickham’s house. At the outset, we observe
that Wallace testified that the defendant told her that
he set the fire. On the basis of this testimony alone, the
jury reasonably could have concluded that the defen-
dant started the fire. See State v. Victor C., 145 Conn.
App. 54, 61, 75 A.3d 48 (‘‘the jury may find a defendant
guilty based solely on the testimony of one witness’’),
cert. denied, 310 Conn. 933, 78 A.3d 859 (2013). The
defendant disagrees, arguing that Wallace’s testimony
was ‘‘suspect at best’’ and inconsistent with the fire
investigators’ testimony, but this argument misapplies
our standard of review, which requires us to construe
the evidence in the light most favorable to sustaining the
verdict and to defer to the jury’s credibility assessments.
State v. Crespo, supra, 317 Conn. 16–17; State v. Jason
B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert.
denied, 290 Conn. 904, 962 A.2d 794 (2009). A jury may
properly decide ‘‘what—all, none, or some—of a wit-
ness’ testimony to accept or reject.’’ (Internal quotation
marks omitted.) State v. Victor C., supra, 61.
Nonetheless, Wallace’s testimony was not the only
evidence that supported the defendant’s conviction. In
the weeks leading up to the fire, the defendant was
frequently at Wickham’s and Thomas’ apartments. The
defendant cooked with Wickham on several occasions
on the charcoal grill on his porch, where Wickham
stored charcoal lighter fluid. On the day of the fire, the
defendant had an argument with Wickham, which left
the defendant, by his own admission, ‘‘very upset and
angry and pissed off.’’ The defendant left Wickham’s
house at about 8:30 p.m. He then purchased alcohol
from a nearby package store, which closed at 9 p.m.
Wommack realized that the house was on fire at approx-
imately 10 p.m. The defendant arrived at Wallace’s
house between 12 a.m. and 12:30 a.m., but, prior to
arriving, he called Fidrych and told her that Wickham’s
house was on fire. This call was placed from a location
where the defendant would not have been able to see
Wickham’s house.
On the basis of this evidence, the jury reasonably
could have concluded that the defendant had access to
Apartment 2A and Wickham’s charcoal lighter fluid, had
a motive to start a fire beneath Wickham’s apartment,
had an opportunity to set the fire, and had personal
knowledge about the fire shortly after it was started.
The defendant advances several arguments as to why
the evidence presented at trial and the inferences rea-
sonably drawn therefrom are consistent with his inno-
cence, but these arguments are inconsistent with our
standard of review. After construing the evidence as
we must, in the light most favorable to sustaining the
verdict, we conclude that the jury reasonably could
have found the defendant guilty beyond a reasonable
doubt.
III
The defendant’s final claim is that the prosecutor
committed certain improprieties during his rebuttal
argument and that the cumulative effect of such impro-
prieties deprived him of a fair trial. We disagree that
the prosecutor committed improprieties during rebuttal
argument and, therefore, reject the defendant’s claim.
The following additional facts are relevant to this
claim. On July 10, 2011, while the fire was being extin-
guished, Detectives Paul Makuc and Wayne Opden-
brouw of the State Police Fire and Explosion
Investigation Unit arrived at the scene with their canine
partners, Baxter and Elway. Makuc interviewed several
eyewitnesses at the scene, but nobody saw who had
started the fire. One neighbor, however, took several
photographs of the front of the house as the fire pro-
gressed and provided them to the investigators.
Once the fire was extinguished, Opdenbrouw and
Makuc conducted a fire cause and origin investigation.
The investigators explored the exterior and interior of
the house and observed that the fire damage was heavi-
est on the second floor. While conducting a walk-
through of Apartment 2A, the investigators noted that
it was sparsely furnished and appeared to have been
vacant at the time of the fire. They observed smoke
and heat damage in the bedroom and, as they walked
toward the rear of the apartment and into the kitchen,
the smoke and heat damage increased and fire damage
became more apparent. The fire damage indicated that
the kitchen and the living room were engulfed in flames.
On the basis of their walk-through, their review of wit-
ness statements and photographs, and their discussions
with firefighters, the investigators made a preliminary
determination that the fire began in Apartment 2A.
Opdenbrouw and Makuc then conducted a ‘‘layered
examination’’ of the fire debris within Apartment 2A.12
In the kitchen, investigators noted that the burn pat-
terns were low to the floor and had a ‘‘V’’ pattern.
Additionally, in the southwest corner of the kitchen
between the refrigerator and the doorway to the living
room, they observed that ‘‘[t]he baseboard trim . . .
[was] very, very heavily fire damaged’’ and that there
were irregular burn patterns on the floor. All of this
they found to be indicative of an intentionally set fire.
When the investigators were unable to locate a ‘‘com-
petent ignition [source]’’ within the apartment, e.g.,
electrical appliances, space heaters, or candles, they
brought Baxter, a trained and certified accelerant detec-
tion canine, to the apartment. Baxter alerted to the
possible presence of an accelerant in the southwest
corner of the kitchen and by an unburnt section of the
carpet in the middle of the living room, which had been
covered by a collapsed coffee table. Samples were taken
from the two areas where Baxter alerted and provided
to Dr. Jack Hubball, the head of the chemistry section
of the state forensic laboratory. Hubball concluded that
only the kitchen sample contained the presence of a
flammable liquid, specifically, a ‘‘medium boiling range
petroleum distillate,’’13 and that the living room sample
contained ‘‘medium boiling range organic compounds,’’
which ‘‘have nothing to do with a flammable liquid.
They’re simply junk that occurs in the course of a fire
. . . .’’ Hubball explained at trial that it was not unusual
for a canine trained in accelerant detection to alert to
the type of organic compound found in the living room
because that compound has a ‘‘close relationship’’ with
the compounds found in some accelerants.14
At trial, Opdenbrouw and Makuc testified that, on
the basis of the totality of their investigation, the fire
had been intentionally set by human hand with an open
flame. Although neither investigator testified as to the
precise area the fire originated, Makuc’s diagram of
Apartment 2A, which was entered into evidence, indi-
cated that the ‘‘area of origin’’ was in the doorway
between the kitchen and the living room. Opdenbrouw
explained that this designation indicated only the gen-
eral area of origin, as ‘‘to put precisely the point of
origin where an individual took an open flame and set
it down to the floor is nearly impossible.’’15 In contrast,
Wallace testified that the defendant told her that ‘‘he
put his hand through the second floor window and set
the curtains on fire.’’
During closing argument, defense counsel attacked
Wallace’s credibility and the quality of the fire investiga-
tion. Defense counsel argued that Wallace’s testimony
was not credible because the physical evidence contra-
dicted it. In particular, defense counsel focused on the
fact that there were no windows or curtains near the
location that Opdenbrouw and Makuc identified as the
area of origin.16 Additionally, he argued that Wallace’s
assertion that the defendant had told her that the flames
‘‘looked like daylight, it was so bright,’’ was contra-
dicted by Wommack’s testimony that he called the fire
department because he saw black smoke and by the
photographs of the progression of the fire, which
showed that it was not very bright in the early stages.
Defense counsel also argued that the investigators’
conclusion that the fire started near the kitchen corner
where Baxter had alerted was unreliable and character-
istic of a conclusory investigation. Defense counsel
focused on the fact that there was evidence that water
was pooling in the kitchen corner where Baxter had
alerted and that, because there was evidence that gaso-
line floats on water, any accelerant in the apartment
could have been pulled into that corner when investiga-
tors punctured the floor to drain water from the
apartment.17
In response to defense counsel’s arguments, the pros-
ecutor made the following remarks, the challenged por-
tions of which are emphasized: ‘‘Now, here’s the part
of the argument where common sense comes into play:
the issue of lighting the fire with the curtains. I don’t
know specifically where that fire started. Nobody could
say specifically where that fire started. What we do
know from the evidence is, the fire did not start in that
photograph where—where the curtains were shown.
That’s on the left hand side of the building. Do you
recall as you look up in that one picture . . . . on the
left hand side of the building, there’s a photograph that
has the ladder, and it shows that curtain. And I believe
the defense made a comment about that curtain.
‘‘State’s [exhibit] 16.18 And the defense touched on
[those] curtains, but if you look at the room itself, that’s
not where the fire started. So, the fact that curtains are
still there in and of itself is not significant. The allegation
is that the fire started in the back room where the
deck is.
‘‘Now, I’m going to correlate this to what Laura Wal-
lace said. Laura Wallace says the fire starts at Apartment
2A, which, in fact, is where the fire started. That’s on
the second floor. It’s not on the first floor of the building.
It’s on the second floor. So, that’s exactly where the
fire started. There’s no curtains there. I don’t know if
there were curtains there because the fire was pretty
intense in there, if you recall. . . .
‘‘There’s no testimony on [how or where the defen-
dant broke into Apartment 2A]. But be that as it may,
I don’t know where the fire exactly started. And if you
recall what the defense says—it was a hard fought.
Well, on the diagram where they show the area of origin,
questions were asked—is that exactly where it starts?
And do you recall they said, well, we don’t know. It’s
this area, we believe, but we don’t know exactly. But,
essentially, it started on the second floor, and they
believe it started back in the kitchen.
‘‘Now, hold that for a second. Laura Wallace says
that the defendant reaches in and lights it and there’s
a flame as bright as day. That’s corroborated by Wom-
mack. Wommack says he looks out and he sees the
flames reflecting off the back of the building, and that’s
part of the reason why, along with the smoke, he called
the fire department. Do you recall that? So, we know
there’s enough flames there, on the back of the building.
‘‘But what else do we also know? We also know
there’s not enough flames from the front. The photo-
graphs that were taken by the neighbor that showed
the flames coming up, and then there’s a progression
of the flames to show it going to the right hand side,
is used to show that the fire did not start in Apartment
2B. Bright as day. Common sense.
‘‘[The] state [is] making the inference and is alleging
that the defendant took an accelerant, which was found,
sprayed it into the apartment in some way in some
place; lit it on fire. Common sense. What happens when
you start a charcoal fire or any fire with charcoal lighter,
and you light it? Phlough. There’s a big flame if you
use a lot of it. There’s a big blast, and there’s a lot of
light and a lot of heat and a lot of flame. And then what
does it do when you start a fire? It dies down and the
other thing starts to catch fire, and the fire develops.
‘‘So, his statement to Ms. Wallace is consistent with
using—him using an accelerant—an accelerant on the
area. . . .
‘‘Really, what does the question come down to? The
question comes down to who started the fire. That’s
what the question comes down to. Was an accelerant
used? Well, an accelerant was found. The defendant—
I believe the defense is arguing some nefarious intent
by the police during the investigation, and moving
things, and incompetent police, and one of the key
points of his issue is that the accelerant was washed
down to a corner of the apartment. He makes a lot out
of that. And in fact, the testimony by the investigators
[is] that water pooled down to that area.
‘‘And what do we know? We know that the police
dog alerted in there; the water pooled down there. And
then the police dog went back and alerted back toward
where the curtains were. That’s logical that when
they’re putting water off on a fire, it would wash all
the accelerants wherever they are, in the area of the
window, down to the corner. It’s logical. We ask you
to use your common sense. Your common sense comes
into play in evaluating all the evidence on this charge.’’
(Emphasis added; footnote added.)
After the prosecutor completed his rebuttal argu-
ment, defense counsel objected to the prosecutor’s
remark that ‘‘that the police dog alerted to where the
curtains were’’ because that remark did not comport
with the facts in evidence. Defense counsel requested
that the court instruct the jury to disregard that remark.
After reviewing that portion of the prosecutor’s remarks
and hearing argument from the parties, the court over-
ruled the defendant’s objection and declined to provide
a curative instruction. The court stated that its ‘‘charge
in general explains to the jury that it’s their recollection
of the fact that controls—of the facts that controls, and
that if the attorney—what the attorneys say is different
from their recollection, it’s their recollection of the facts
that controls, so, I think, under the circumstances, and
since I do not believe there was any intentional misrep-
resentation of evidence in the case, I’m just going to
leave it at the court’s regular charge.’’
On appeal, the defendant raises five challenges to
the prosecutor’s rebuttal argument. We will address
each of the claimed improprieties in turn.19 We begin,
however, with the standard of review and legal princi-
ples that guide our analysis of each of these claims. We
review claims of prosecutorial impropriety under 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 defen-
dant 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. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry.’’ (Citations omitted.) State v. Fauci,
282 Conn. 23, 32, 917 A.2d 978 (2007). ‘‘The defendant
bears the burden of satisfying both of these analytical
steps.’’ State v. O’Brien-Veader, 318 Conn. 514, 524, 122
A.3d 555 (2015).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . [B]ecause closing arguments often have a
rough and tumble quality about them, some leeway
must be afforded to the advocates in offering arguments
to the jury in final argument. [I]n addressing the jury,
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument.’’ (Internal quotation marks
omitted.) State v. Elias V., 168 Conn. App. 321, 347,
147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d
386 (2016).
A
The defendant first claims that the prosecutor
improperly and ‘‘repeatedly stated that the police did
not know exactly where the fire started, despite the
unwavering testimony of Detectives Opdenbrouw and
Makuc that the area of origin was the southwest corner
of the kitchen floor.’’ Similarly, the defendant claims
that the prosecutor improperly expressed a personal
opinion when he stated that he did not know where
the fire started. We disagree with these two claims.
After reviewing the prosecutor’s closing argument,
we have found one instance when the prosecutor stated
that the investigators did not know where the fire
started and two instances when the prosecutor referred
to his own knowledge. The prosecutor remarked: ‘‘I
don’t know specifically where that fire started. Nobody
could say specifically where that fire started. What we
do know from the evidence is, the fire did not start
in that photograph where—where the curtains were
shown.’’ (Emphasis added.) Shortly thereafter, the pros-
ecutor remarked: ‘‘I don’t know where the fire exactly
started. And if you recall what the defense says—it was
a hard fought. Well, on the diagram where they show
the area of origin, questions were asked—is that exactly
where it starts? And do you recall they said, well, we
don’t know. It’s this area, we believe, but we don’t know
exactly. But, essentially, it started on the second floor,
and they believe it started back in the kitchen.’’ (Empha-
sis added.)
It is well settled that ‘‘[c]ounsel may comment upon
facts properly in evidence and upon reasonable infer-
ences to be drawn from them’’; (emphasis omitted;
internal quotation marks omitted) State v. Arline, 223
Conn. 52, 58, 612 A.2d 755 (1992); and we conclude that
the challenged remarks were permissible comments on
the evidence presented at trial. Although Makuc identi-
fied certain factors in the kitchen that led him to believe
that the fire was intentionally set, he never testified as
to the area of origin. Opdenbrouw did discuss the area
of origin, but he consistently maintained that they could
determine only the ‘‘general area of origin’’ of the fire,
which he identified as the area near the doorway
between the kitchen and the living room. Opdenbrouw
further explained that ‘‘to put precisely the point of
origin where an individual took an open flame and set
it down to the floor is nearly impossible.’’
We further conclude that the prosecutor’s remarks
about his own knowledge did not constitute an
improper personal opinion. Although there are restric-
tions on a prosecutor’s ability to express a personal
opinion during closing argument, ‘‘[i]t is not improper
for the prosecutor to comment upon the evidence pre-
sented at trial and to argue the inferences that the jurors
might draw therefrom . . . . We must give the jury the
credit of being able to differentiate 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 quota-
tion marks omitted.) State v. O’Brien-Veader, supra,
318 Conn. 547.
B
The defendant next claims that the prosecutor
improperly stated ‘‘that the fire started in ‘the back
room where the deck is:’ the living room’’ because the
evidence adduced at trial showed that the fire started
in the kitchen. We disagree.
The prosecutor’s entire remark was that ‘‘[t]he allega-
tion is that the fire started in the back room where
the deck is.’’ We observe that the prosecutor’s rebuttal
argument in this case often moved between points in
a loose and nonlinear fashion. When evaluating this
remark in the context of the prosecutor’s entire argu-
ment, it is unclear whether the prosecutor, in making
this statement, was definitively asserting that the state’s
theory of the case was that the fire started in the living
room. Shortly before and after making this remark, the
prosecutor stated that he did not know ‘‘specifically’’
or ‘‘exactly’’ where the fire started. Similarly, shortly
after making this remark, the prosecutor observed that,
despite his uncertainty as to the precise area of origin,
the investigators’ testimony and diagram indicated that
‘‘essentially, [the fire] started on the second floor . . .
back in the kitchen.’’ Later, the prosecutor again framed
the state’s allegation broadly: the ‘‘state [is] making the
inference and is alleging that the defendant took an
accelerant, which was found, sprayed it into the apart-
ment in some way in some place; lit it on fire.’’
Nonetheless, even if we were to interpret the prosecu-
tor’s remark as asserting that the state’s theory of the
case was that the fire started in the living room, we
cannot conclude that it constituted a misrepresentation
of the evidence presented at trial. We disagree with the
defendant that there was ‘‘no evidence that the fire
started in the living room.’’ As we previously explained,
Opdenbrouw consistently refused to identify a precise
area of origin. Instead, he identified the general area
of origin as being in the doorway between the kitchen
and the living room. Furthermore, the defendant himself
suggested at trial that Baxter’s alert in the kitchen cor-
ner was unreliable because the flow of water could
have pulled the accelerant from another location in
the apartment to that corner. Therefore, the evidence
presented at trial could support an allegation that the
fire started in the ‘‘back room where the deck is.’’
‘‘As a general rule, we do not dissect every sentence
of the prosecutor’s argument to discover impropriety.
. . . We do not scrutinize each individual comment in
a vacuum, but rather we must review the comments
complained of in the context of the entire trial. . . . It
is in that context that the burden [falls] on the defendant
to demonstrate that the remarks were so prejudicial that
he was deprived of a fair trial and the entire proceedings
were tainted.’’ (Citation omitted; internal quotation
marks omitted.) State v. Orellana, 89 Conn. App. 71,
106, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d
1202 (2005). We cannot conclude that this remark rose
to the level of prosecutorial impropriety.
C
The defendant’s third claim is that ‘‘the prosecutor
improperly suggested that the jury make an inference
from facts not in evidence when he stated that Wallace’s
testimony about the cause of the fire was consistent
with [him] using an accelerant.’’ In particular, the defen-
dant argues that it was improper for the prosecutor to
suggest that it was reasonable to infer that ‘‘Wallace’s
testimony was consistent with [him] spraying acceler-
ant through the living room window’’ because Wallace
did not testify that he told her that he used an accelerant
and because no accelerant was found in the living room.
The defendant’s claim is without merit because it
mischaracterizes the prosecutor’s remark. The prosecu-
tor neither stated nor suggested that Wallace’s testi-
mony was consistent with the defendant spraying
accelerant through the living room window. Instead,
the prosecutor argued that Wallace’s testimony that the
defendant told her that the flames ‘‘looked like daylight,
it was so bright,’’ is consistent with the defendant’s
‘‘using . . . an accelerant on the area.’’ Although the
prosecutor’s reference to ‘‘the area’’ is ambiguous, the
prosecutor’s statements immediately before and imme-
diately after this remark do not suggest that the ‘‘area’’
he was referring to was the living room.20
Furthermore, the evidence presented at trial sup-
ported the prosecutor’s remark. Opdenbrouw and
Makuc testified that the burn patterns in Apartment 2A
were consistent with an accelerant having been poured
on the floor. Baxter alerted to the presence of acceler-
ant in the kitchen. Hubball confirmed that the sample
taken from the kitchen contained the presence of a
flammable liquid. It is well established that ‘‘[a] prosecu-
tor . . . is permitted to comment upon the evidence
presented at trial and to argue the inferences that the
[fact finder] might draw therefrom . . . .’’ (Internal
quotation marks omitted.) State v. Nelson, 105 Conn.
App. 393, 418, 937 A.2d 1249, cert. denied, 286 Conn.
913, 944 A.2d 983 (2008). As a result, we cannot con-
clude that the disputed remark was improper.
D
The defendant’s final claim is that ‘‘the prosecutor
misstated the evidence about the areas where the police
canine alerted’’ when he remarked that ‘‘the police dog
went back and alerted back toward where the curtains
were.’’ The defendant argues that, ‘‘[a]s a result of this
impropriety, the jury would have been entitled to con-
clude that [Baxter’s] alert by the living room window
was consistent with Wallace’s testimony that [he]
reached into the window and lit the curtains on fire.’’
We disagree.
As we previously explained, defense counsel argued
at trial that Baxter’s alert in the kitchen was unreliable
because the accelerant could have been pulled toward
the kitchen corner by the flow of water. When
responding to this floating accelerant theory, the prose-
cutor remarked: ‘‘He makes a lot out of that. And, in
fact, the testimony by the investigators [is] that water
pooled down to that area. And what do we know? We
know that the police dog alerted in there, the water
pooled down there. And then the police dog went back
and alerted back toward where the curtains were.
That’s logical that when they’re putting water off on a
fire, it would wash all the accelerants wherever they
are, in the area of the window, down to the corner. It’s
logical.’’ (Emphasis added.)
As the defendant correctly points out, the evidence
demonstrated that Baxter alerted only in the kitchen
corner and the living room. There was no evidence of
curtains in these rooms. Although the defendant has
identified a factual flaw in the prosecutor’s argument,
we disagree that it constituted prosecutorial impro-
priety.
There is a ‘‘distinction between misstatement and
misconduct.’’ State v. Dawes, 122 Conn. App. 303, 314,
999 A.3d 794, cert. denied, 298 Conn. 912, 4 A.3d 834(2010); see also State v. Orellana, supra, 89 Conn. App.
105 (isolated misstatement not prosecutorial impropri-
ety). The prosecutor correctly observed earlier in his
argument that the only room with evidence of curtains
was the bedroom and that the evidence was clear that
the fire did not start in there. Additionally, before mak-
ing the challenged remark, the prosecutor referred the
jury to Makuc’s diagram, which identified the area of
origin as being in the doorway between the kitchen and
the living room, and stated that the investigators had
concluded that the fire had ‘‘started back in the
kitchen.’’ We reiterate that ‘‘[w]e do not scrutinize each
individual comment in a vacuum, but rather we must
review the comments complained of in the context of
the entire trial.’’ (Internal quotation marks omitted.)
State v. Orellana, supra, 106. Given the context of the
challenged statement, it is clear that the prosecutor’s
reference to Baxter’s alert near curtains was merely an
isolated misstatement of the evidence, one that the jury
likely recognized as such.21
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
The parties and witnesses at trial frequently referred to the house as
being ‘‘Wickham’s house’’ even though Wickham does not appear to have
had a proprietary interest in it. For simplicity, therefore, we refer to the
house as Wickham’s house.
3
There was also evidence presented that the argument involved a dispute
over crack cocaine.
4
Two firefighters were injured while extinguishing the fire.
5
Evidence was presented that from the location where the defendant
called Fidrych, he would not have been able to see the fire.
6
The officers interviewed Fidrych and Bogue. Fidrych confirmed that she
saw the defendant on the night of the fire, that he called her, and that he
told her that Wickham’s house was on fire. Evidence was not presented as
to what specifically Bogue said, but one of the investigating officers testified
that Bogue’s statements about the defendant concerned him, and the officer
agreed with the prosecutor that Bogue’s statements failed to ‘‘[dispel] [the]
idea that [the defendant] was involved in this incident . . . .’’
7
As we discuss subsequently in this opinion, the court’s factual findings
were made during an oral ruling. The defendant has not provided this court
with a signed transcript of that ruling. Instead, he has provided us with an
unsigned transcript of the court’s oral ruling. In an appeal challenging a
ruling on a motion to suppress, an adequate record usually includes either
a written memorandum of decision or a signed transcript of the court’s oral
ruling. Practice Book § 64-1 (a) (4). The appellant is responsible for providing
that record to this court. Practice Book § 61-10 (a). ‘‘On occasion, we will
entertain appellate review of an unsigned transcript when it sufficiently
states the court’s findings and conclusions.’’ (Internal quotation marks omit-
ted.) State v. Oliphant, 115 Conn. App. 542, 544, 973 A.2d 147, cert. denied,
293 Conn. 912, 978 A.2d 1113 (2009). We have reviewed the unsigned tran-
script in this case, and we conclude that it provides an adequate record for
our review.
8
Camp could not recall whether he told the defendant that he was free
to leave at the clinic, but he recalled advising him that he was free to leave
‘‘a couple times’’ during their conversation at the cemetery.
9
Camp’s cell phone records confirmed that this call was made.
10
The defendant suggests that he was further isolated from his mother
by the fact that he ‘‘did not have a cell phone and was unable to contact
her’’ after he missed their appointment. The force of this argument is dimin-
ished by the defendant’s testimony at the suppression hearing that the clinic
had a phone that patients were allowed to use and that he did in fact
use the clinic phone to call his mother after the interview. The defendant
disavowed ever being offered the use of one of the police officers’ cell
phones, which he thought seemed ‘‘strange . . . .’’ The defendant stated
that his mother arrived ‘‘pretty quick’’ after he called her from the clinic,
‘‘maybe fifteen, twenty’’ minutes.
11
The defendant argues that the court failed to consider that he had to
ask the police officers twice to leave before he was permitted to leave, once
at the clinic and once at the cemetery. The record does not support the
defendant’s argument. At the suppression hearing, Camp testified that he
believed that the defendant mentioned having an appointment with his
mother before they went to the cemetery. Camp did not testify, however,
that the defendant told them at the clinic when his appointment with his
mother was or that he could not speak to them because his mother would
be there shortly. Additionally, although the defendant testified that he told
the officers at one point that he had to meet his mother, he did not testify
that he told the officers while they were at the clinic that he could not
speak with them because his mother would be there shortly. Indeed, the
only time the defendant mentioned telling the officers about his meeting
with his mother was when he told them in the cemetery that he needed to
leave because he was concerned about being late to meet his mother. The
defendant further testified that after making this request, he was allowed
to leave.
12
Opdenbrouw explained: ‘‘Layering . . . is basically—it’s almost like
being an archeologist in that . . . you’ve got to get down to where the room
condition was at the time of the fire. If this room were to have a fire within
it, fire suppression crews are going to come and firefighters are going to
come in. They’re going to spray water everywhere; they’re going to knock
things over, clearly, in an effort to put out the fire. They’re also going to
overhaul or pull ceilings and pull walls to try to find trapped fire. When
they do that, you end up with all of this debris falling onto your floor, and
the floor that you look at when you walk in for a fire investigation is not
necessarily the floor that would have been there at the time the fire occurred.
‘‘Many times what we have to do as fire investigators is layer out that
material to get lower to the room as it was at the actual time of fire, and
that’s how we usually locate competent ignition sources, evidentiary items,
patterns, and such.’’
13
Hubball explained that ‘‘the category of medium boiling range petroleum
distillates . . . is the largest class of commercially available products. All
of your paint thinners, charcoal lighter fluids, oil based paint, oil based
stains, car care products, industrial solvents—all of these materials are
considered to be medium boiling range petroleum distillates.’’
14
Hubball is also the laboratory’s liaison to the state’s canine units and
is responsible for certifying all of the canines trained in accelerant, bomb,
and drug detection in Connecticut.
15
Although Makuc was questioned while being shown the diagram, he
was never asked whether the designated area of origin was intended to be
a general or a precise designation.
16
The area of origin in Makuc’s diagram is in the northwest region of the
living room near to the doorway to the kitchen. Conversely, the window
near the porch was located in the southeast region of the living room.
Although there was evidence of curtains in the bedroom, there was no
evidence that the living room window had curtains prior to the fire.
17
No evidence was presented that the floor was punctured to drain water
from the apartment. During cross-examination, defense counsel asked Opde-
nbrouw whether the floor was punctured to drain water from Apartment
2A, but he did not recall whether the floor was punctured. Defense counsel
asked Makuc whether the fire investigators had to drain the standing water
in Apartment 2A, and he agreed that the water was either drained or dried
up. He did not testify, however, as to how the water was drained.
18
Exhibit 16 is a photograph of the Apartment 2A bedroom, which is
located at the front of the apartment. In the corner of that photograph, there
is a window with what appears to be a curtain or blanket hanging from it.
19
Although the defendant did not object to all of the improprieties claimed
on appeal, they are nevertheless reviewable. ‘‘We previously have recognized
that a claim of prosecutorial impropriety, even in the absence of an objection,
has constitutional implications and requires a due process analysis . . . .’’
(Citation omitted; internal quotation marks omitted.) State v. Gibson, 302
Conn. 653, 658–59, 31 A.3d 346 (2011).
20
Rather, shortly before making this remark the prosecutor stated that
the investigators concluded that ‘‘essentially, it started on the second floor,
and they believe it started back in the kitchen.’’ The prosecutor also
explained a few sentences before the disputed remark that he was ‘‘making
the inference and . . . alleging that the defendant took an accelerant, which
was found, sprayed it into the apartment in some way in some place . . . .’’
21
We also observe that, contrary to the defendant’s assertion, the prosecu-
tor’s closing argument would not have ‘‘entitled [the jury] to conclude that
[Baxter’s] alert by the living room window was consistent with Wallace’s
testimony that [he] reached into the window and lit the curtains on fire.’’
It is well settled that ‘‘[s]tatements or comments made by attorneys in the
course of examination or argument are not facts in evidence, and may not
properly be considered by the jury.’’ State v. Duntz, 223 Conn. 207, 236, 613
A.2d 224 (1992). In accordance with this principle, the jury was instructed
that the arguments and statements made by the attorneys were not evidence
and could not be considered when deciding the facts of the case.