State v. Butler

FOTI, J.,

dissenting. I respectfully dissent. The primary issue in this appeal is whether the trial court properly denied the defendant’s motion for a mistrial on the ground of prosecutorial misconduct. The defendant ar gues that the remarks made by the prosecutor were so prejudicial as to deprive him of a fair trial and violated his right to due process, in spite of the court’s emphatic curative instruction.¹ Alternatively, he claims that even if he was not denied a fair trial, we should exercise our supervisory authority to grant him a new trial. See State v. Pouncey, 241 Conn. 802, 808, 699 A.2d 901 (1997) (court has supervisory power to order new trial to deter prosecutorial misconduct that is “ ‘unduly offensive to the maintenance of a sound judicial process’ ”).

As a preliminary matter, let me state that the prosecutor’s remarks were clearly improper and perhaps worthy of sanction. I also conclude, however, that defense counsel’s earlier remark that “[Jeffrey Dolphin] has lied to other juries,” made during final argument, also was improper. As a result, I view the prosecutor’s misconduct as having been invited by the defendant’s argument.

The defendant argues that his comment was not improper because on cross-examination of Dolphin, defense counsel elicited certain inconsistencies in prior statements and prior testimony in other cases.² My review of the record discloses that Dolphin never admitted lying in other cases or at any other time. The purpose of the cross-examination was to allow the defendant to argue to the jury that Dolphin was not credible in his current testimony because of prior inconsistencies. In remarking in final argument that Dolphin had lied to other juries, however, the defendant was inviting the jury to speculate that other juries had disbelieved his testimony and, therefore, had acquitted the codefen-dants, James Baker and Terrance Stevenson.

In final closing argument, the prosecutor replied, “I do not want you to be left with the wrong impression— [defense counsel] said that [Dolphin] has lied to other juries. Well, let me tell you, ladies and gentlemen, I wish I could tell you what other juries decided, but I am not allowed to.” The obvious meaning of that remark was that “defense counsel implied that other juries had acquitted Baker and Stevenson, and I am implying otherwise.”

Closing argument by both sides should be based on the evidence presented during trial. There was no evidence presented concerning the verdicts in other cases, which evidence would have been totally improper. Given the circumstances of this case combined with the very strong curative instruction given by the court; see footnote 11 of the majority opinion; I would not reverse this conviction.³ There was no due process violation and the defendant was not deprived of a fair trial. I would, therefore, affirm the judgment.

1 The court also offered defense counsel the opportunity for surrebuttal argument to the jury. The offer was withdrawn when defense counsel proffered that he would, if given that chance, argue that the jury should adopt a negative inference from the prosecutor’s remarks, i.e., that the remarks were motivated by a bad case.

2 In using the trial transcripts, the defendant brought forward inconsistencies in the testimony given at the trials of James Baker and Terrance Stevenson. Some of the testimony, however, was consistent with Dolphin’s direct testimony in this matter.

3 In fact, courts in other jurisdictions have found that the introduction of evidence of a codefendant’s conviction was not per se prejudicial, especially if the introduction was in some way invited by defense counsel; see United States v. Casto, 889 F.2d 562, 567 (5th Cir. 1989), cert. denied, 493 U.S. 1092, 110 S. Ct. 1164, 107 L. Ed. 2d 1067 (1990) (not improper in light of possibility that defense counsel would later inquire about guilty plea to impeach witness); United States v. Bryza, 522 F.2d 414, 424-25 (7th Cir. 1975), cert. denied, 426 U.S. 912, 96 S. Ct. 2237, 48 L. Ed. 2d 837 (1976) (not prejudicial when used to refute defendant’s inference that codefendants were not indicted); Swift v. United States, 314 F.2d 860, 863 (10th Cir. 1963) (not prejudicial when used to counter defendant’s argument that, since codefendants did not know merchandise was stolen, defendant did not. know); or if the trial court gave a curative instruction to the jury. See United States v. Hartmann, 958 F.2d 774, 781-82 (7th Cir. 1992) (instruction that codefendant’s guilty plea was “ ‘not to be considered as evidence against the defendants’ ” sufficient to cure prejudice); United States v. De La Vega, 913 F.2d 861, 866-67 (11th Cir. 1990), cert. denied, 500 U.S. 916, 111 S. Ct. 2011, 114 L. Ed. 2d 99 (1991) (curative instruction rendered exposure to codefendant’s conviction harmless); United States v. Pickett, 746 F.2d 1129, 1135-36 (6th Cir. 1984), cert. denied, 469 U.S. 1226, 105 S. Ct. 1222, 84 L. Ed. 2d 362 (1985) (jury capable of abiding by court’s clear, direct corrective instruction not to consider evidence of codefendants’ guilty pleas).