State v. Martinez

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STATE OF CONNECTICUT v. ANTHONY MARTINEZ
(SC 19198)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa,
Robinson and Vertefeuille, Js.
Argued April 23—officially released December 1, 2015
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were John Smriga, state’s attorney,
and Nicholas Bove, senior assistant state’s attorney, for
the appellant (state).
Alice Osedach, assistant public defender, for the
appellee (defendant).
Opinion
ZARELLA, J. The principal issue in this certified
appeal is whether the Appellate Court properly reversed
the judgment of the trial court on the ground that the
senior assistant state’s attorney (prosecutor) made cer-
tain improper comments during closing argument that
deprived the defendant, Anthony Martinez, of a fair trial.
Following his conviction of possession of narcotics with
intent to sell in violation of General Statutes § 21a-277
(a) and conspiracy to possess narcotics with intent to
sell in violation of § 21a-277 (a) and General Statutes
§ 53a-48 (a), the defendant appealed to the Appellate
Court, which reversed the judgment of conviction and
ordered a new trial. State v. Martinez, 143 Conn. App.
541, 543, 581, 69 A.3d 975 (2013). On appeal to this
court, the state challenges the Appellate Court’s conclu-
sion that the prosecutor violated a court order when
he stated during closing argument that no money from
an alleged drug transaction was found on the defen-
dant’s person and referred to facts outside the record
regarding the custom and practice of narcotics dealers
when he argued that it would be ‘‘logical’’ and ‘‘[make]
sense’’ for the defendant to ensure that any drugs or
money involved in the transaction was held by his
coconspirator. The defendant contends that the Appel-
late Court properly concluded that the state had vio-
lated a court order concerning the permissible bound-
aries of argument, made factual assertions to the jury he
knew were untrue and compounded these improprieties
by arguing facts unsupported by the evidence regarding
the modus operandi of drug dealers, thus depriving the
defendant of his due process right to a fair trial. We
conclude that the prosecutor’s argument was not
entirely proper, but we do not agree with the defendant
that the improper argument rendered the trial funda-
mentally unfair. Accordingly, we reverse the judgment
of the Appellate Court.
I
We begin with the following relevant facts set forth
in the Appellate Court’s opinion. ‘‘On June 2, 2009, Lieu-
tenant Christopher LaMaine, of the Bridgeport [P]olice
[D]epartment, was conducting an investigation into sus-
pected drug activity at a particular residence in [the
city of] Bridgeport. While conducting surveillance of
the residence, LaMaine observed two individuals, later
identified as Javier Nevarez and Camilla Blakes,
approach the residence in what he concluded was an
attempt to purchase narcotics. Nevarez and Blakes left
the residence without engaging in a drug transaction
and, instead, drove their car to Washington Park in
Bridgeport, an area known for drug activity. LaMaine
followed Nevarez and Blakes and parked his surveil-
lance van on the edge of the park. From the backseat
of the van, through tinted windows, LaMaine watched
Nevarez and Blakes approach a male who directed them
to a bench farther into the park. The defendant and
[Mari] Vargas were sitting on that park bench with their
backs toward LaMaine.
‘‘Eighty-two yards away from the bench where the
defendant and Vargas were sitting, LaMaine used binoc-
ulars to view the scene. . . . [T]he defendant and Var-
gas sat next to each other, almost shoulder to shoulder,
with the defendant on the right side of the bench and
Vargas in the middle. Nevarez and Blakes approached
the defendant, and Nevarez and the defendant appeared
to speak briefly. The defendant and Vargas both then
looked down at a common point in their laps. Although
LaMaine could not see their hands, laps, or what they
were looking at, from the way they both turned toward
each other and down, LaMaine believed that the defen-
dant and Vargas appeared to exchange something. The
defendant then reached up to a point at which his hand
was visible to LaMaine, and LaMaine observed him
appear to exchange something with Nevarez. Nevarez
and Blakes then turned and walked back toward their
vehicle, and, as Nevarez walked, he inspected some-
thing in his hand, cupping it in one palm and poking it
with his other finger, consistent, according to LaMaine,
with an inspection of drugs.
‘‘After Nevarez and Blakes left the bench, a second
man approached the defendant and another apparent
exchange took place between the defendant and Vargas,
and then between the defendant and the second man, in
the exact same manner that had occurred with Nevarez.
The second man walked away and was never identified
or apprehended. As Nevarez and Blakes got back into
their car, LaMaine radioed nearby officers to stop the
car to check for narcotics. As the officers were
approaching, Nevarez and Blakes pulled the vehicle
over and parked. Officer Gregory Iamartino, who was
driving an unmarked vehicle, exited his vehicle and
went to the driver’s side of Nevarez’ car. When Nevarez
noticed Iamartino, [Nevarez] placed an item into his
mouth and swallowed it. Iamartino saw a glass crack
pipe and two small bags of what appeared to be crack
cocaine in the center console of the vehicle between
Nevarez and Blakes. Iamartino relayed back to LaMaine
that the car was stopped and suspected narcotics were
seized. A subsequent field test performed by Officer
Nicole Donawa yielded a positive result for the presence
of crack cocaine and heroin in the drugs found in the
car.
‘‘LaMaine called in additional units of the narcotics
team, which then entered Washington Park and arrested
the defendant and Vargas. When officers approached
the defendant, he did not attempt to run away or resist
arrest, and no contraband was found on him. Officer
Barbara Gonzalez searched Vargas and, after noticing
the top of a plastic bag sticking out of the top of her
pants, discovered a plastic bag containing what
appeared to be small parcels of narcotics concealed
in her pants. Gonzalez also found $25 on Vargas. The
substances in the bags were field tested and subse-
quently sent to the state [Controlled Substances and
Toxicology Laboratory] where the substances tested
positive for cocaine and heroin.
‘‘The state charged the defendant . . . with one
count of possession of narcotics with intent to sell in
violation of § 21a-277 (a), one count of possession of
narcotics with intent to sell within 1500 feet of a school
in violation of General Statutes § 21a-278a (b), one
count of conspiracy to possess narcotics with intent to
sell in violation of §§ 53a-48 (a) and 21a-277 (a), and
one count of conspiracy to possess narcotics with intent
to sell within 1500 feet of a school in violation of [§§ 53a-
48 (a) and] 21a-278a (b).’’ (Footnotes omitted.) State v.
Martinez, supra, 143 Conn. App. 544–46.
The defendant elected to be tried by a jury. During
pretrial proceedings, the defendant filed a motion to
suppress $60 found in his possession because the
money was seized without a warrant. The trial court
granted the motion and ordered that ‘‘the $60 will not
be the subject of testimony during the trial.’’
Approximately one week later, the defendant filed a
motion in limine in which he sought to preclude the
state and its witnesses from referring, directly or indi-
rectly, to ‘‘ ‘deal[s],’ ’’ ‘‘ ‘transaction[s],’ ’’ or ‘‘ ‘hand-to-
hand drug exchange[s]’ ’’ between the defendant and
any other person because such terms implied an
exchange of money for drugs and thus would be highly
prejudicial. The court denied the motion, explaining
that ‘‘the motion to suppress has been won, and it will
keep the state from introducing any evidence whatso-
ever that [the police] found any money on your client,
and it permits you to argue they didn’t find any money
on him; the absence of evidence of a transaction.’’
The following day, defense counsel renewed her argu-
ment that testimony referring to a transaction between
the defendant and another person would suggest that
money had been exchanged in violation of the suppres-
sion order. When counsel further noted that it would
be unfair for the defense to suggest that no money was
found on the defendant because money was found but
suppressed, the court responded: ‘‘But you could argue
at closing, can’t you, the absence of money?’’ Counsel
replied that this might misstate the evidence because
money in fact was found on the defendant, to which
the court replied that ‘‘[i]t doesn’t misstate the evi-
dence’’ and that counsel was ‘‘certainly . . . free to
argue it . . . at closing.’’ The following colloquy then
ensued:
‘‘The Court: . . . I think you can argue that no money
was found on [the defendant] at closing if there’s no
evidence—that you didn’t hear evidence of any cash
found on him.
‘‘[Defense Counsel]: Exactly. And that—that’s proba-
bly the furthest I could go with that because that’s the
actual state of affairs, that there was a legal operation
here that kept—
‘‘The Court: You didn’t hear any evidence—
‘‘[Defense Counsel]: Keeps—
‘‘The Court: Right?
***
‘‘The Court: And you can do that, and that’s pretty
powerful, which is why you won the motion to suppress.
I assume that’s why you filed it in the first place.
‘‘[Defense Counsel]: It is—it is powerful, Your Honor.
‘‘The Court: All right.’’
The court reiterated that it was denying the defen-
dant’s request in his motion in limine to preclude the
parties from referring, directly or indirectly, to
‘‘ ‘deal[s],’ ’’ ‘‘ ‘transaction[s],’ ’’ or ‘‘ ‘hand-to-hand drug
exchanges’ ’’ before ruling as follows: ‘‘The court’s rul-
ing suppressing the money does only that—it sup-
presses the evidence seized. . . . And the state cannot
refer to the money that [was] seized from the defendant.
And [defense counsel] and the defense are free to argue
at closing that there was no evidence of money found
on the defendant.
‘‘The fact that the state cannot use the evidence of
the money seized does not mean that the state can’t
introduce other evidence of exchanges in conduct
between the parties as observed by the officers as evi-
dence that the parties were engaged in a . . . transac-
tion. The jury, if evidence is introduced, might find or
draw inferences supporting a finding of transactions.
It, of course, will depend on the evidence.
‘‘But, while the defendant may argue the absence of
money on him, the defendant cannot use the motion
to suppress to preclude the state from introducing other
evidence that it may have of a transaction. If the state
chooses to call it a transaction, a buy, a sale, and does
not introduce evidence to support it, then it’s up to the
defense to make those arguments at closing and to ask
the jury whether the reference to the term deal, buyer,
[or] transaction [is] . . . reasonable in light of what-
ever evidence they admit.’’ At no time during the exten-
sive discussion that preceded this ruling did the pros-
ecutor indicate that he did not understand the limits
placed by the trial court on the parties’ closing argu-
ments.
The prosecutor subsequently contended in closing
argument: ‘‘If you’re gonna go into a park, the evidence
would suggest that you’re gonna go into a park and sell
narcotics, or conspire to sell narcotics with intent to
sell—have narcotics with intent to sell in a park. It is
very logical that one of the first things you want to do
if you [are the defendant] in a case like this is to make
sure that the drugs are on your coconspirator and that
the money’s on your coconspirator. Now, when that
prospective buyer, Nevarez, comes up, he goes—he
goes to [the defendant]. And the reason he goes to [the
defendant] and not [to] Vargas is [the defendant] is
calling the shots. He goes to him, he goes over to . . .
Vargas; they’re doing something together. And then Nev-
arez walks away . . . .’’
After the prosecutor stated that LaMaine, who had
been observing the defendant and Vargas through his
binoculars, summoned some nearby officers to stop
Nevarez’ car and search for narcotics, he continued:
‘‘And then Officer Gonzalez comes in with the rest of
the police officers, and what does . . . Officer Gonza-
lez find in the hands of . . . Vargas: . . . the narcotics
identified by the state narcotics lab. You can look at
this, and you can take [a] close look [at] it; it’s narcotics,
it’s illegal substances, and it was found on . . . Vargas.
And it was also, as Officer Gonzalez testified, $25 found
on . . . Vargas.
‘‘Ladies and gentlemen of the jury, that . . . is the
state’s case. [The] state is content to rest this case with
you on the strong evidence of what Lieutenant LaMaine
observed that day, and how quickly [the officers] moved
in, and what they found. It’s clear that [the defendant]
and . . . Vargas were acting in a conspiracy to possess
narcotics with intent to sell based on the evidence that
you’ve heard. Now, the judge is also gonna instruct you
on something called overt acts, and they’re a number
of overt acts in this case. One . . . possible overt act
is the getting of the items from Vargas; [the defendant]
got items from Vargas; the handing of the item or items
to Nevarez; and then [the defendant’s] taking money in
exchange for the items [to] Nevarez.
‘‘Now, one may say, well, why wasn’t there any money
found on [the defendant]? Well, if you’re setting up an
operation in a park, you want to make sure that the
drugs and the money are found on the coconspirator;
it makes sense. When the police moved in, they found
it on the coconspirator. And that in essence is the
state’s case.’’
Defense counsel then approached the bench for a
sidebar conference. Thereafter, during closing argu-
ment, she contended, among other things, that there
was no evidence that the defendant and Nevarez had
exchanged money or drugs. In making this argument,
counsel referred at least four times to LaMaine’s testi-
mony that he saw no money exchanged.1 Counsel subse-
quently added, ‘‘[m]aybe [the prosecutor] can explain
to you why [the defendant] was doing all of these things
in exchange for no money at all,’’ thus turning what
had been multiple references to LaMaine’s testimony
into a statement that the defendant had received no
money during the exchanges with Nevarez.
Following defense counsel’s argument and the jury’s
departure from the courtroom, the court stated that it
wanted to put its conversation with counsel during the
sidebar conference on the record. The trial court noted,
and defense counsel confirmed, her objection to the
prosecutor’s argument that no money was found on the
defendant, that the money was carried by Vargas and
that the two were involved in a conspiracy. Defense
counsel stated that this was not a proper argument in
light of the court’s suppression of evidence that money
was found on the defendant because suppression can-
not be used ‘‘as both a shield and a sword . . . .’’
Defense counsel further explained that the prosecutor,
having been told he could not present certain evidence,
should not have been allowed to use the lack of such
evidence against the defendant.
The court also stated for the record that it had asked
defense counsel if she wanted the court to take any
action before her closing argument but that counsel
had declined because she did not wish to highlight or
hint that any money was found on the defendant. The
court reflected: ‘‘It’s interesting because it is precisely
what you wanted to argue to the jury, but we had a
discussion about the fact that the [court’s suppression
of] the money does not give the defense the right to
say there was no money found on him. You could
allude—you could make the argument that there’s—
you’ve heard no evidence . . . of any money found on
him, but you couldn’t affirmatively say no money was
found on him.’’ The court added, and defense counsel
agreed, that she was not objecting to this argument
because it would not hurt the defendant but, rather,
because it would be an argument the defense would
want to make.
In an attempt to further clarify defense counsel’s
objection, the court stated: ‘‘What you’re arguing is that
then to take that and say that . . . the reason . . . the
coconspirator had the money [is] because it’s part and
parcel [of] a conspiracy; [the defendant] is running the
show and, therefore, [Vargas] has the drugs and the
money on her. . . . Is [that] what you’re objecting to?’’
After defense counsel agreed that she was objecting to
this argument, the court asked: ‘‘What if [the prosecu-
tor] had made that argument without referencing
whether any money was found on the defendant . . .
? In other words, the state could certainly argue . . .
like [it] did with the drugs . . . [that] the drugs are on
[Vargas] because that’s [the state’s] theory of the case.
That’s how these things go down. Sort of the leader
doesn’t want to be held left . . . holding drugs, and
so they give it to a coconspirator.’’ Defense counsel
responded that, if the prosecutor had made this argu-
ment without reference to the absence of money on the
defendant, she did not believe she would have objected.
She reiterated that her objection was to ‘‘the specific
reference to a lack of money on [the defendant], which
we know was not the case.’’ In response to the trial
court’s query as to the type of relief she was seeking,
such as a limiting jury instruction, defense counsel
stated that she did not believe a limiting instruction
would be helpful but indicated she was preserving her
right to appeal on that issue.
Defense counsel also moved for a mistrial. The prose-
cutor defended his argument as proper because it was
intended to explain why money and drugs were found
on Vargas rather than on the defendant. The prosecutor
stated that he did not believe he had mischaracterized
the facts because he did not mention that $60 was found
on the defendant. He acknowledged the difference
between arguing that there was no money found on the
defendant versus arguing that there was no evidence
of money found on the defendant, but stated that he
did not believe he would have objected if defense coun-
sel had made the same argument. The trial court denied
the motion for a mistrial because it did not believe
that the prosecutor’s argument ‘‘would prejudice the
defendant in the totality of how the statements were
made . . . .’’ The court explained that the prosecutor’s
comment that no money was found on the defendant
was in the context of his theory that, as the person
calling the shots in a conspiracy with Vargas, the defen-
dant would want to make sure that the drugs and money
were on his coconspirator and not on himself. The court
opined that the prosecutor could have made the same
argument without reference to the fact that no money
was found on the defendant because he was saying, in
effect, that all of the money the two possessed consisted
of the $25 found on Vargas.
At the close of the evidence, defense counsel moved
for a judgment of acquittal, claiming that the state had
not proven the charges beyond a reasonable doubt. The
trial court denied the motion. After closing arguments,
defense counsel moved again for a judgment of acquittal
or for a new trial. The court denied that motion as well.
The jury found the defendant guilty of possession of
narcotics with intent to sell and conspiracy to possess
narcotics with intent to sell, but not guilty on the counts
related to being within 1500 feet of a school. The trial
court sentenced the defendant to concurrent terms of
twelve years incarceration on the possession and con-
spiracy counts, execution suspended after five years,
and five years of probation.
The defendant appealed to the Appellate Court,
which reversed the judgment of conviction and
remanded the case for a new trial. State v. Martinez,
supra, 143 Conn. App. 543, 581. The Appellate Court
agreed with the defendant that, in view of the trial
court’s suppression order, the prosecutor’s claim during
closing argument that no money was found on the
defendant was improper. Id., 570, 577. The court also
agreed with the defendant that the prosecutor improp-
erly urged the jurors to draw conclusions lacking in
evidentiary support when he suggested, without the
introduction of any expert testimony regarding the cus-
tom and practice of drug dealers, that it would be ‘‘ ‘logi-
cal’ ’’ and ‘‘ ‘[make] sense’ ’’ for the defendant to ensure
that the drugs and money were held by his coconspira-
tor, thus rendering the trial fundamentally unfair. Id.,
570, 572, 577–78, 580. The state appealed to this court
from the judgment of the Appellate Court, claiming that
the prosecutor’s remarks were not improper.
The governing legal principles are well established.
‘‘[T]he touchstone of due process analysis in cases of
alleged prosecutorial [impropriety] is the fairness of
the trial, and not the culpability of the prosecutor. . . .
The issue is whether the prosecutor’s conduct so
infected the trial with unfairness as to make the
resulting conviction a denial of due process. . . . In
determining whether the defendant was denied a fair
trial [by virtue of prosecutorial impropriety] we must
view the prosecutor’s comments in the context of the
entire trial. . . .
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [an impro-
priety] occurred in the first instance; and (2) whether
that [impropriety] deprived [the] defendant of his due
process right to a fair trial. Put differently, [an impropri-
ety is an impropriety], regardless of its ultimate effect
on the fairness of the trial; whether that [impropriety]
caused or contributed to a due process violation is a
separate and distinct question . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v.
Andrews, 313 Conn. 266, 279, 96 A.3d 1199 (2014).
‘‘As we previously have recognized, prosecutorial
[impropriety] of a constitutional magnitude can occur
in the course of closing arguments. . . . When making
closing arguments to the jury, [however] [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . . Moreover, [i]t does not follow . . . that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal devices is simply fair argument. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence upon jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks no
conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. While the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment upon, or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider.’’
(Internal quotation marks omitted.) State v. Medrano,
308 Conn. 604, 611–12, 65 A.3d 503 (2013). Mindful of
these principles, we consider each of the state’s claims
in turn.
II
A
The state first claims that the prosecutor did not
violate a clear court order but reasonably interpreted
the court’s remarks as allowing him to argue that there
was no money, an absence of money or no evidence
of money found on the defendant.2 The state also claims
that it is not improper, when evidence of money has
been suppressed, to ask the jury to infer that no money
was found on the defendant. The defendant responds
that the prosecutor violated a clear court order concern-
ing the permissible boundaries of argument and made
factual assertions to the jury he knew were untrue when
he stated that no money was found on the defendant.
We agree with the defendant.
In considering the prosecutor’s question during clos-
ing argument, ‘‘[w]hy wasn’t there any money found on
[the defendant],’’ the Appellate Court concluded that,
although ‘‘the [trial] court’s instructions to counsel
could be fairly read as sending mixed signals regarding
the extent to which counsel could refer to the absence
of money being found on the defendant’s person . . .
consideration of all the court’s remarks on this subject,
as well as the undisputed legal effect of suppressing
the evidence of the money found on the defendant’s
person . . . left . . . the distinct impression that the
[trial] court . . . intended to [only] allow argument
that there was no evidence of money found on the
defendant and not, as argued by the state, that the
defendant actually was not in possession of any funds.’’
State v. Martinez, supra, 143 Conn. App. 576–77. The
Appellate Court thus concluded: ‘‘[T]he prosecutor’s
argument that ‘no money was found on the defendant’
falls outside the bounds of the permissible argument
set by the [trial] court.’’ Id., 577.
As previously noted, the trial court addressed the
boundaries of permissible argument two different times
during the pretrial proceedings: first, when it granted
the defendant’s motion to suppress evidence of the $60
found on the defendant; and, second, when it denied
the defendant’s motion in limine seeking to prohibit the
use of certain terms, such as ‘‘ ‘deal[s],’ ’’ ‘‘ ‘transac-
tion[s],’ ’’ or ‘‘ ‘hand-to-hand drug exchange[s],’ ’’ that
might suggest to the jury that the defendant received
money in exchange for drugs. It is undisputed that the
suppression order was not violated and that the trial
court permitted the parties to use the language that
was challenged in the motion in limine during their
closing arguments. Accordingly, we must examine the
trial court’s instructions to counsel during the two day
hearing on the motion in limine.
Having reviewed the record of that hearing, we con-
clude that the trial court clearly instructed that,
although the parties would not be allowed to argue that
no money was found on the defendant, they would be
allowed to argue that the jury had heard no evidence
that money was found on the defendant. On the first
day of the hearing, the court advised the parties that it
would allow references by the state and its witnesses
to ‘‘transactions’’ and ‘‘exchanges’’ but that the state
would not be allowed to introduce evidence that the
police found money on the defendant. It then added
that defense counsel would be permitted to argue that
‘‘they didn’t find any money on [the defendant]; the
absence of evidence of a transaction.’’
When the hearing continued the following day,
defense counsel argued that it would be unfair to con-
tend that no money was found on the defendant, given
that money was found but suppressed. The court
responded that counsel would not be misstating the
evidence if she argued ‘‘the absence of money,’’ but,
after a lengthy discussion, the court concluded: ‘‘I think
you can argue that no money was found on [the defen-
dant] at closing if there’s no evidence—that you didn’t
hear evidence of any cash found on him.’’ (Emphasis
added.) Defense counsel confirmed this was ‘‘probably
the furthest [she] could go with that because that’s the
actual state of affairs . . . .’’ The court agreed, stating:
‘‘You didn’t hear any evidence . . . [r]ight?’’ (Empha-
sis added.) In its subsequent ruling on the motion in
limine, the court again explained: ‘‘The court’s ruling
suppressing the money does only that—it suppresses
the evidence seized. . . . And the state cannot refer to
the money that [was] seized from the defendant. And
[defense counsel] and the defense are free to argue at
closing that there was no evidence of money found
on the defendant.’’ (Emphasis added.) The court then
stated that, although ‘‘the defendant [could] argue the
absence of money on him,’’ the defendant could not
preclude the state from using other evidence to demon-
strate the occurrence of a transaction, a buy or a sale.
In sum, after defense counsel expressly challenged
the trial court’s instruction on the first day of the hearing
that the motion to suppress permitted counsel to argue
that ‘‘they didn’t find any money on [the defendant];
the absence of evidence of a transaction,’’ the court
stated four times on the second day of the hearing that
defense counsel would be allowed to argue that no
money was found on the defendant as long as she speci-
fied ‘‘there was no evidence of money found on the
defendant.’’ (Emphasis added.) Although the court also
stated in its last comment on the subject that defense
counsel could argue ‘‘the absence of money on [the
defendant],’’ this was very likely an unintended slip of
the tongue. Immediately prior to this comment, the
court had engaged in a lengthy discussion with defense
counsel during which counsel repeatedly expressed
concern that it was unfair to make an argument to the
jury that was clearly untrue. Accordingly, the court’s
multiple references to the fact that the argument could
be made if clothed in the qualifying language should
have been apparent to everyone present at the hearing.
Indeed, this appears to have been the case because the
prosecutor never sought further clarification on the
ground that the instructions were unclear. We therefore
conclude that the trial court’s instructions were unam-
biguous following its extended colloquy with counsel
and that the prosecutor’s argument was improper.3
B
The state next claims that the prosecutor did not
improperly argue facts outside the record that were not
common knowledge and that required expert testimony
regarding the custom and practice of drug dealers when
he stated that it is ‘‘logical’’ and ‘‘makes sense’’ for the
defendant to have his coconspirator hold any drugs or
money involved in a transaction so as to avoid being
implicated.4 The defendant responds that the prosecu-
tor’s argument was improper because the modus ope-
randi of drug dealers is not common knowledge and the
prosecutor introduced no evidence or expert testimony
that the custom or practice of drug dealers is for a
coconspirator to hold the drugs and money. We agree
with the state.
The Appellate Court concluded that ‘‘there was no
evidentiary support for the prosecutor’s argument that
conspirators who traffic in drugs are known to place
the drugs and cash on their coconspirator’’; State v.
Martinez, supra, 143 Conn. App. 577–78; and that this
practice was a ‘‘typical behavior of drug dealers . . . .’’
Id., 579. The court thus determined that ‘‘[i]t was . . .
improper for the prosecutor to argue this inference to
the jury without such evidentiary support.’’ Id., 578.
It is well established that ‘‘[a] prosecutor may invite
the jury to draw reasonable inferences from the evi-
dence; however, he or she may not invite sheer specula-
tion unconnected to evidence. . . . [W]hen a prose-
cutor suggests a fact not in evidence, there is a risk that
the jury may conclude that he or she has independent
knowledge of facts that could not be presented to the
jury.’’ (Internal quotation marks omitted.) State v. Ska-
kel, 276 Conn. 633, 746, 888 A.2d 985, cert. denied, 549
U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). Thus,
when a prosecutor claims that a defendant’s conduct
is consistent with that of a typical drug dealer, this court
has recognized that expert testimony on the common
practice of drug dealers may assist the jury in determin-
ing whether the defendant fits that profile. See, e.g.,
State v. Vilalastra, 207 Conn. 35, 42, 540 A.2d 42 (1988);
see also State v. Waden, 84 Conn. App. 147, 153–54, 852
A.2d 817 (‘‘the state presented expert testimony that it
is common for a street level drug dealer to keep a ‘stash’
of narcotics in an area close to where he is selling,
rather than [to] have a significant quantity on his per-
son’’), cert. denied, 271 Conn. 916, 859 A.2d 574 (2004);
State v. Ogrinc, 29 Conn. App. 694, 699–700, 617 A.2d
924 (1992) (state presented expert testimony by police
officer regarding common practice of drug dealers,
including quantity of narcotics included in each package
and method of packaging).
In the present case, we agree with the state that no
expert testimony was required in this case because the
Appellate Court improperly characterized the prosecu-
tor’s closing argument. The Appellate Court understood
his argument as referring to the modus operandi of drug
dealers generally, a matter on which no evidence had
been offered. The Appellate Court thus viewed the pros-
ecutor as claiming that ‘‘conspirators who traffic in
drugs are known to place the drugs and cash on their
coconspirator’’; State v. Martinez, supra, 143 Conn.
App. 578; and that the defendant was engaging in behav-
ior ‘‘typical’’ of drug dealers when he made sure incrimi-
nating evidence of drugs and money was held by his
coconspirator. Id., 579. The Appellate Court, however,
misstated the prosecutor’s argument.
The prosecutor made no reference to the common
practice of drug dealers, nor did he compare the defen-
dant’s behavior to that of drug dealers generally. The
prosecutor focused exclusively on the conduct of the
defendant and asked the jurors to put themselves in
the defendant’s position and to apply their own personal
knowledge of human nature and behavior in order to
understand why he may have done certain things in
the course of the transactions to avoid possible arrest.
Thus, the prosecutor argued: ‘‘It is very logical that
one of the first things you want to do if you [are the
defendant] in a case like this is to make sure that the
drugs are on your coconspirator and that the money’s
on your coconspirator. Now, when that prospective
buyer, Nevarez, comes up, he goes—he goes to [the
defendant]. And the reason he goes to [the defendant]
and not [to] Vargas is [the defendant] is calling the
shots. He goes to him, he goes over to . . . Vargas;
they’re doing something together. And then Nevarez
walks away . . . .’’ (Emphasis added.)
Shortly thereafter, the prosecutor employed the same
rhetorical device when he argued as follows: ‘‘Now, one
may say, well, why wasn’t there any money found on
[the defendant]? Well, if you’re setting up an operation
in a park, you want to make sure that the drugs and
the money are found on the coconspirator; it makes
sense. When the police moved in, they found it on the
coconspirator. And that in essence is the state’s case.’’
(Emphasis added.)
Jurors, ‘‘[i]n considering the evidence introduced in
a case . . . are not required to leave common sense
at the courtroom door . . . nor are they expected to
lay aside matters of common knowledge or their own
observations and experience of the affairs of life . . . .’’
(Internal quotation marks omitted.) State v. King, 289
Conn. 496, 522, 958 A.2d 731 (2008). In the present
case, the prosecutor was not referring to the common
practice and modus operandi of drug dealers who work
with coconspirators, which would have constituted
facts unsupported by the evidence. Rather, he was ask-
ing the jurors to rely on their own experience, intuition
and common sense in order to understand why the
defendant might have wanted to make sure that the
drugs and money were on Vargas. Accordingly, we con-
clude that the prosecutor did not argue facts outside
the record and beyond the common knowledge of the
jurors that would have required expert testimony when
he stated that it is ‘‘logical’’ and ‘‘makes sense’’ that the
defendant would want to ensure that his coconspirator
held the drugs and money involved in the transaction.
III
Having concluded that one of the prosecutor’s argu-
ments was improper, we now consider whether the
improper argument deprived the defendant of his due
process right to a fair trial. In conducting this inquiry,
we are guided by the factors enumerated by this court
in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987). ‘‘These factors include the extent to which the
[impropriety] was invited by defense conduct or argu-
ment, the severity of the [impropriety], the frequency
of the [impropriety], the centrality of the [impropriety]
to the critical issues in the case, the strength of the
curative measures adopted, and the strength of the
state’s case.’’ (Internal quotation marks omitted.) State
v. Ruffin, 316 Conn. 20, 28, 110 A.3d 1225 (2015). ‘‘[A]
reviewing court must apply the Williams factors to
the entire trial, because there is no way to determine
whether the defendant was deprived of his right to a
fair trial unless the [impropriety] is viewed in light of
the entire trial.’’ (Internal quotation marks omitted.)
State v. Andrews, supra, 313 Conn. 280. ‘‘The question
of whether the defendant has been prejudiced by prose-
cutorial [impropriety] . . . depends on whether there
is a reasonable likelihood that the jury’s verdict would
have been different absent the sum total of the impropri-
eties.’’ (Internal quotation marks omitted.) State v. War-
holic, 278 Conn. 354, 396, 897 A.2d 569 (2006).
Upon application of the Williams factors to the prose-
cutorial impropriety in the present case, we conclude
that the defendant was not deprived of his due process
right to a fair trial. Although the prosecutor’s comment
that no money was found on the defendant was not
invited by the defense, this impropriety was more than
offset by the fact that the comment was never repeated
and was not particularly severe. Although the trial court
and defense counsel properly distinguished between
arguing that there was no money found on the defendant
and arguing that there was no evidence of money found
on the defendant, most of the jurors very likely would
have found the two arguments to have been indistin-
guishable because they were both exculpatory. More-
over, because the trial court’s order precluding the
parties from arguing that no money was found on the
defendant benefited the state more than the defendant,
violation of the order assisted the defense because it
made the state’s case more difficult to prove. In addi-
tion, the prosecutor’s argument was not necessarily
any more prejudicial than the argument that the court
permitted—that there was no evidence of money on the
defendant—because referring directly to there being a
lack of evidence might have caused the jurors to wonder
whether the defendant had managed surreptitiously to
conceal or discard any money he may have received in
the transaction with Nevarez. Defense counsel herself
suggested this possibility when she rejected a curative
instruction by the court that the prosecutor had misspo-
ken and that the more accurate statement was that
there was no evidence of money found on the defen-
dant. Finally, defense counsel made a comment very
similar to the comment of the prosecutor during her
closing argument when she argued that the prosecutor
should explain ‘‘why [the defendant] was doing all of
these things in exchange for no money at all,’’ which
is hardly less egregious than the prosecutor’s rhetorical
question, ‘‘well, why wasn’t there any money found on
[the defendant]?’’ Accordingly, the second and third
Williams factors, the frequency and severity of the pros-
ecutorial impropriety, weigh in favor of the state.
The fourth Williams factor also weighs in favor of
the state. A critical issue in the case was whether the
defendant accepted money from Nevarez in exchange
for drugs. Thus, any argument by either party referring
to an absence of money on the defendant was related
to this issue. The prosecutor, however, was precluded
from arguing that $60 was found on the defendant in
light of the trial court’s ruling on the defendant’s motion
to suppress. The prosecutor therefore argued that no
money was found on the defendant because, as the
leader of the coconspiracy with Vargas, he wanted to
protect himself by ensuring that any drugs or money
involved in the transaction was held by Vargas. As pre-
viously discussed, Vargas was found in possession of
$25 and drugs matching those found in the car Nevarez
was driving when he subsequently was apprehended
by the police. Under this theory, which the trial court
did not deem improper,5 whether the prosecutor argued
that there was no money found on the defendant or no
evidence of money found on the defendant is irrelevant
because both arguments make exactly the same point.
Indeed, it might have been more damaging to the defen-
dant’s case if the prosecutor had argued that there was
no evidence of money found on the defendant because
specifically referring to the lack of evidence might have
led the jurors to believe that, even if no evidence had
been found, the defendant might have received money
in a drug transaction that he managed to convey to
Vargas before the police confronted him.
The fifth Williams factor is the strength of the cura-
tive measures adopted by the court. In the present case,
although the trial court offered to give the jury a curative
instruction regarding the prosecutor’s comment,
defense counsel rejected such an instruction as poten-
tially damaging because it might suggest to the jury that
money was found on the defendant. Defense counsel
thus prevented the trial court from correcting the prose-
cutor’s error by instructing the jury that there was no
evidence of money found on the defendant or that the
jury must ignore the prosecutor’s argument to the
extent it relied on the improper comment, even though
such an instruction could have been given without sig-
nificant emphasis during the court’s general summation
of the evidence. Accordingly, the lack of a curative
instruction in this case does not weigh against the state.
The last Williams factor, the strength of the state’s
case, clearly weighs in favor of the state. The state
explained in its closing argument that it was relying
principally on LaMaine’s observations of the defendant
and Vargas, on the rapidity with which the other officers
moved in on the defendant and Vargas following their
interactions with Nevarez and another unidentified indi-
vidual, and on evidence of drugs and cash found on
Vargas. In addition, there was evidence that the park
in which the defendant and Vargas were found was
known for drug activity, that Nevarez appeared to be
inspecting something in his hand while he was walking
away from the defendant and Vargas, that Nevarez put
something in his mouth and swallowed it when he saw
the officer approach his car following his meeting with
the defendant and Vargas, and that narcotics similar to
those found on Vargas were found in Nevarez’ car. Thus,
although LaMaine was unable to see exactly what the
defendant, Vargas and Nevarez were exchanging with
one another, the foregoing circumstantial evidence
strongly suggested that the defendant had engaged in
a drug transaction.
The defendant draws our attention to three cases he
deems persuasive from other jurisdictions, holding that
prosecutorial improprieties deprived those defendants
of a fair trial. See Berger v. United States, 295 U.S. 78,
88–89, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); United States
v. Forlorma, 94 F.3d 91, 93–94 (2d Cir. 1996); State v.
McSwine, 22 Neb. Ct. App. 791, 800–801, 860 N.W.2d 776
(2015). The prosecutorial improprieties in those cases,
however, were far more egregious than the impropriety
in the present case.6 Accordingly, we conclude, follow-
ing our review of the Williams factors, that there is no
reasonable likelihood that the prosecutor’s comments
in the present case affected the jury’s verdict.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion ROGERS, C. J., and ESPINOSA and
VERTEFEUILLE, Js., concurred.
1
Defense counsel first argued: ‘‘What did [LaMaine] testify to here; he
saw no money exchanged. Not only did he not see crumpled money, he
didn’t see any money exchanged at all. He didn’t even testify that he thought
that, maybe, he saw money. You see what I’m saying: no money at all.’’
Counsel later added, with respect to the lack of direct evidence: ‘‘Maybe
[the prosecutor] can explain to you why you should disbelieve the testimony
of Lieutenant LaMaine, who admitted . . . very forthrightly, very openly,
he couldn’t hear anything, he didn’t see any drugs, he didn’t see any money,
he didn’t see any furtive hand movements, [and] he didn’t see any secre-
tive behavior.’’
2
The defendant acknowledges in his brief to this court that, even though
the trial court was primarily addressing defense counsel’s concerns during
the hearing on the motion in limine and, ‘‘even though the court did not
specifically state that the prosecutor was also free to argue that there was
no evidence of money found on the defendant, obviously, the [prosecutor]
was free to do so.’’ Accordingly, the trial court’s comments regarding the
limits of closing argument were directed to both parties.
3
In light of our ultimate conclusion that the prosecutor’s reference to the
absence of money on the defendant did not render the trial fundamentally
unfair; see part III of this opinion; we need not address the state’s related
claim that asking the jury to infer that the defendant had no money on his
person, when the money was suppressed, was not improper.
4
The dissent argues that the prosecutor ‘‘compounded’’ his initial error
of arguing that there was no money found on the defendant ‘‘by implying
to the jury that all of the drugs and the money were in the possession of
the defendant’s alleged coconspirator, [Vargas], in order to support the
state’s theory that the defendant, acting as the ringleader, sought to exculpate
himself by sequestering all of the contraband—both the drugs and the
money—with Vargas.’’ (Emphasis omitted.) The dissent claims that the pros-
ecutor improperly advanced this theory when he argued to the jury that it
‘‘ ‘makes sense’ that the defendant would place the drugs and money in
Vargas’ possession’’; (emphasis omitted); thus ‘‘asking the jury to draw an
inference based on a fact that he knew [to be] false.’’ We disagree.
First, the dissent disregards uncontroverted evidence that Vargas was in
possession of both drugs and $25 at the time of the defendant’s arrest.
Accordingly, the prosecutor’s statement that the police found drugs and
money on Vargas was accurate.
Second, the prosecutor did not argue that ‘‘all’’ of the drugs and the money
were found on Vargas. Rather, the prosecutor argued that it was ‘‘logical’’
to believe that a coconspirator like the defendant would ‘‘make sure that
the drugs are on your coconspirator and that the money’s on your coconspira-
tor.’’ The prosecutor further argued: ‘‘Now, one may say, well, why wasn’t
there any money found on [the defendant]? Well, if you’re setting up an
operation in a park, you want to make sure that the drugs and the money
are found on the coconspirator; it makes sense. When the police moved in,
they found it on the coconspirator. And that in essence is the state’s case.’’
At no point in this argument did the prosecutor claim that all of the money
and the drugs were found in Vargas’ possession.
Third, the trial court did not rule that the prosecutor could not argue that
the police found drugs and money on Vargas, nor did the court preclude
the prosecutor from drawing any inferences from this fact regarding the
conspiratorial relationship between Vargas and the defendant. The court
instead queried defense counsel as to whether she would disagree with an
argument by the prosecutor that the defendant’s coconspirator had ‘‘the
drugs and the money’’ on her because she was part of a conspiracy with
the defendant in which the defendant was running the show. Defense counsel
initially responded that, if the prosecutor had made this argument without
reference to the absence of money on the defendant, she did not believe
that she would have objected. She then added that her objection was to
‘‘the specific reference to a lack of money on [the defendant], which we
know was not the case.’’ In claiming that the prosecutor could not draw an
inference regarding the conspiratorial relationship between the defendant
and Vargas from the fact that Vargas was in possession of drugs and money,
the defendant in effect seeks to suppress the evidence found on Vargas and
the reasonable inferences that can be drawn therefrom. The trial court’s
order suppressing the evidence found on the defendant, however, did not
and could not extend to the drugs and money found on Vargas. Thus, the
harm caused by the prosecutor’s argument that no money was found on
the defendant was not significantly compounded by the prosecutor’s remark
that it ‘‘makes sense’’ that the defendant, acting as the ringleader, would
have ensured that Vargas was in possession of the drugs and the money.
The jury could have concluded that the defendant and Vargas were involved
in a conspiracy simply on the ground that Vargas was in possession of $25
and drugs. In other words, the defendant’s due process right to a fair trial
was not appreciably affected following the prosecutor’s initial remark that
no money was found on the defendant by his subsequent statement, in
furtherance of his conspiracy theory, that it ‘‘makes sense’’ that drugs and
money were found on Vargas.
5
As previously noted, the trial court conducted an extensive discussion
with defense counsel following closing argument during which counsel
contended that the prosecutor not only should have been precluded from
arguing that no money was found on the defendant, but also from arguing
that the reason there was no evidence of money found on the defendant
was because he wanted to ensure that the money and drugs were in Vargas’
possession. The defendant also makes this argument on appeal. The defen-
dant, however, never raised this issue during the hearing on the motion in
limine, and, consequently, the trial court never had the opportunity to con-
sider it before the parties’ closing arguments, and there was no court order
or instruction in place to preclude the prosecutor from making the argument
before the prosecutor gave his summation. Furthermore, when defense
counsel finally raised the issue for the first time following closing arguments
in the context of the motion for a mistrial, the trial court dismissed it,
explaining that the prosecutor could have made a similar argument that
the defendant wanted to ensure that the money and drugs were on his
coconspirator, Vargas, without referring to the absence of money on the
defendant. We agree with the trial court’s reasoning and, therefore, reject
the defendant’s claim on both of the foregoing grounds.
6
See Berger v. United States, supra, 295 U.S. 84–85, 89 (prosecutor
engaged in ‘‘pronounced and persistent’’ misconduct during cross-examina-
tion and argument, including ‘‘misstating the facts in his cross-examination
of witnesses . . . putting into the mouths of such witnesses things which
they had not said . . . suggesting by his questions that statements had been
made to him personally out of court, in respect of which no proof was
offered . . . pretending to understand that a witness had said something
which he had not said and persistently cross-examining the witness [on]
that basis . . . assuming prejudicial facts not in evidence . . . bullying and
arguing with witnesses . . . and . . . [presenting arguments that were]
undignified and intemperate, containing improper insinuations and asser-
tions calculated to mislead the jury’’); United States v. Forlorma, supra, 94
F.3d 93–94 (‘‘the prosecutor’s repeated baseless argument that a suit fitting
[the defendant] was in [a] bag with the heroin at the time of his arrest
. . . reinforc[ed] the inference of [the defendant’s] awareness of the heroin
concealed in the bag’’ and likely influenced jury’s verdict, thus depriving
defendant of fair trial); State v. McSwine, supra, 22 Neb. Ct. App. 800–801
(prosecutor’s repeated, misleading comments during closing argument chal-
lenging defendant’s rationale for his potentially incriminating text messages
deprived defendant of right to fair trial because comments could have served
as basis for jury determination that defendant lacked credibility and thus
was guilty of crime).