State v. Reddick

 STATE OF CONNECTICUT v. JERMAINE E.
REDDICK
(AC 38446)
Sheldon, Keller and Prescott, Js.
Syllabus
The defendant, who had been convicted of several offenses that arose from
a shooting incident, appealed to this court, claiming that he was deprived
of his constitutional right to a fair trial as a result of certain allegedly
improper comments that the prosecutor made during closing argument
to the jury. The defendant asserted, inter alia, that the prosecutor improp-
erly used the defendant’s exercise of his right to remain silent as evidence
of his guilt, expressed his opinion about a witness’ credibility and
appealed to the jurors’ emotions. The defendant and his girlfriend, G,
had argued on their way to G’s home after leaving a party that they had
attended. When they arrived, G called her mother to ask that she come
and pick up G’s minor child. G’s mother then woke up her brother, the
victim, and G’s mother and the victim thereafter drove to G’s house,
where they observed the defendant in the passenger seat of a vehicle
that was leaving the premises. The victim approached the vehicle in
which the defendant was sitting, and the defendant eventually got out
of the vehicle and shot the victim with a handgun. The defendant then
got back into the vehicle, which left the premises. A police officer
thereafter stopped the defendant’s vehicle and arrested him. During a
police search of the vehicle, a handgun was found, which the defendant
stated belonged to him. During the encounter with the officer, the defen-
dant did not inform him that he shot the victim in self-defense. At trial,
the defendant, who previously had been convicted of a felony, claimed
that he had shot the victim in self-defense. G, who sustained injuries
on the evening of the shooting, gave conflicting accounts through testi-
mony and statements given to the police as to how she sustained those
injuries. Although both parties questioned the arresting officer as to the
sequence of events pertaining to his stop of the defendant’s vehicle,
neither the state nor the defendant established when in that sequence
the defendant was arrested or if and when the officer informed the
defendant his constitutional rights. Held:
1. The defendant could not prevail on his claim that his constitutional right
to a fair trial was violated when the prosecutor stated during closing
argument to the jury that the defendant did not inform the police officer
who arrested him that he acted in self-defense when he shot the victim,
thereby using his postarrest silence as circumstantial evidence of his
guilt: there was no basis on which to conclude that the prosecutor used
the defendant’s exercise of his right to remain silent as evidence of his
guilt, as the record did not establish when the defendant was arrested,
whether the arrest preceded or followed the questioning of him by the
police officer who stopped the defendant’s vehicle, and if and when the
officer informed the defendant of his constitutional rights, and there
was no evidence that the defendant expressly invoked his right to remain
silent during his encounter with the officer.
2. This court found unavailing the defendant’s claim that he was deprived
of his due process rights to a fair trial when the prosecutor allegedly
expressed his opinion during closing argument as to the credibility of
G, and appealed to the jurors’ emotions by referencing a trend in gun
violence and referring to the defendant as a convicted felon and a
predator: contrary to the defendant’s claim that the prosecutor
expressed his belief that G lied about her injuries, the prosecutor argued
that G was biased in favor of the defendant and had a motive to testify
favorably for him, and asked the jury to draw reasonable inferences
from G’s testimony, in which she presented different accounts as to how
she was injured on the evening of the shooting; furthermore, although the
prosecutor’s reference to broader issues of gun violence and certain
comments he made about the defendant’s prior felony conviction were
improper, the court’s jury instructions were sufficient to cure any preju-
dice resulting from the gun violence comment, the prosecutor did not
refer to the defendant as a predator, and the defendant failed to demon-
strate that, in the context of the entire trial, the challenged comments
that were deemed improper were so egregious as to render the trial
unfair, as the state’s case was strong, the comments were infrequent
and the defendant failed to object to the comments at issue.
Argued February 3—officially released July 11, 2017
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree, criminal posses-
sion of a firearm and assault in the third degree, brought
to the Superior Court in the judicial district of New
Haven and tried to the jury before B. Fischer, J.; verdict
and judgment of guilty, from which the defendant
appealed to this court. Affirmed.
Robert E. Byron, assigned counsel, for the appel-
lant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Patrick J. Griffin, state’s attorney,
Michael Dearington, former state’s attorney, and Gary
W. Nicholson, supervisory assistant state’s attorney, for
the appellee (state).
Opinion
SHELDON, J. The defendant, Jermaine E. Reddick,
appeals from the judgment of conviction, rendered
against him after a jury trial in the judicial district of
New Haven, on charges of assault in the first degree in
violation of General Statutes § 53a-59 (a) (5), criminal
possession of a firearm in violation of General Statutes
§ 53a-217 (a) (1), and assault in the third degree in
violation of General Statutes § 53a-61 (a) (1). On appeal,
the defendant claims that his conviction should be
reversed on grounds that the prosecutor, in his closing
argument to the jury, violated his right to a fair trial by
(1) improperly commenting on the defendant’s failure
to inform police officers at the time of his arrest that
he had shot the victim in self-defense; (2) offering his
personal opinion as to the credibility of a state’s wit-
ness; and (3) appealing to the emotions of the jurors
by injecting extraneous issues into the trial and com-
menting on the defendant’s prior felony conviction. We
affirm the judgment of the trial court.
The jury was presented with the following evidence
upon which to base its verdict. In the early morning
hours of April 29, 2013, the defendant, along with his
girlfriend, Myesha Gainey, and their three year old
daughter, J,1 got a ride home from a party they had
attended earlier in the evening. Both the defendant and
Gainey had been drinking before the ride. At the start of
the ride, the defendant was seated in the front passenger
seat, while Gainey sat in the backseat with J. At some
point during the ride, however, the defendant reached
into the backseat, unbuckled J’s seat belt, and lifted
her into the front seat, where she remained unbuckled
for the remainder of the ride. Upon seeing that J was
unbuckled in the front seat of the car, Gainey began to
argue with the defendant. The argument continued until
the couple reached Gainey’s home at 38 Peck Street,
New Haven, where the defendant stayed several nights
a week.
Upon arriving at 38 Peck Street, Gainey took J up
to the second floor of the home. There, she told the
defendant that she was going to call her mother, Marjo-
rie Tillery, to come over and pick up J.2 The defendant
and Gainey then started to argue again. Shortly before
1 a.m., Marjorie Tillery received a phone call from J,
who was crying and sounded distraught. During this
phone call, Tillery also spoke with Gainey, who sounded
emotional and upset. Although Gainey provided few
details to her mother about what was happening, Tillery
became concerned for Gainey’s and J’s safety, and
agreed to drive over to Peck Street from her home in
West Haven.
Thereafter, Tillery woke up the victim, her brother,
Mickey Tillery, who was asleep in another room. She
told her brother that the defendant had been hitting
Gainey, and thus that she wanted him to accompany
her to retrieve Gainey and J from New Haven.3 The
Tillerys then drove together from West Haven to Lom-
bard Street, New Haven, where Gainey had instructed
Marjorie Tillery to meet her.4 After waiting several
minutes at that location, the Tillerys left Lombard Street
and drove over to Peck Street.5 When they arrived,
however, they were unable to find parking in the lot
behind Gainey’s home, and Marjorie Tillery parked her
Chevy Tahoe truck in the middle of the parking lot,
blocking several occupied parking spaces. At that time,
Marjorie Tillery attempted to call Gainey to inform her
that they had arrived at Peck Street. Within minutes of
the Tillerys’ arrival, a grey station wagon began to back
out of a parking spot that was partially blocked by
Marjorie Tillery’s Tahoe. As she was about to move the
Tahoe, Marjorie Tillery observed the defendant in the
front passenger seat of the station wagon. She then
stated to Mickey Tillery, ‘‘there go Jermaine right there.’’
Upon seeing the defendant in the passenger seat of
the station wagon, both Tillerys exited the Tahoe and
began to approach the station wagon. Although Marjo-
rie Tillery recalled that she ‘‘came in peace,’’6 Mickey
Tillery admittedly came with the intent to fight the
defendant. He testified at trial that, upon seeing the
defendant, ‘‘I kind of, like, lost it. I jumped out of the
truck. I ran over to where he was sitting in the car
. . . .’’ During this initial encounter, the station wagon
remained stationary in its parking space, with its doors
unlocked and its passenger window partially down.
As he approached the station wagon, Mickey Tillery
began to argue with the defendant, saying ‘‘something
about [how] I’m tired of this with my niece and then
. . . like I said, I pushed him, and I just put my hands
inside the car and tried to snatch him out and he yanked
back.’’ Mickey Tillery also recounted, ‘‘I put my hand
inside the car so I could snatch him out the car a minute
and . . . that’s why I opened the [passenger] door, but
they locked it and then they [rolled] their windows up,
and [so] I stepped away from the car and I was just
looking because I couldn’t get in now that they [had]
hatched the windows up and lock[ed] the door.’’
After the defendant locked the car’s doors and rolled
up its windows, Mickey Tillery took several steps away
from the station wagon in an effort to lure the defendant
out of the car. Several seconds later, Mickey Tillery
heard the doors of the station wagon unlock, and,
believing that he and the defendant were about to fight,
Mickey Tillery backed away from the car to allow the
defendant to exit the station wagon. The defendant
then opened the front passenger side door, exited the
vehicle, produced a nine millimeter semiautomatic
handgun and shot Mickey Tillery, who, at the time, was
stepping away from the vehicle with his hands up in
the air. Mickey Tillery immediately collapsed on the
pavement. Fearing that the defendant might shoot her
as well, Marjorie Tillery got back into the Tahoe. The
defendant then returned to the passenger side of the
station wagon and got in, after which the station wagon
backed out of the parking space, drove around the
Tahoe, and exited the parking lot. Immediately after
the station wagon left the area, Marjorie Tillery saw
Gainey exiting her neighbor’s home. Although Gainey
had not witnessed the shooting, Marjorie Tillery told
her that the defendant had shot Mickey Tillery, who,
by then, was lying unconscious near the passenger side
of the Tahoe. Marjorie Tillery also dialed 911 and
reported the incident to the police.
Officer Reginald E. McGlotten of the New Haven
Police Department arrived first on the scene. After
speaking with Marjorie Tillery, McGlotten broadcasted
a description of the shooter and the station wagon over
his police radio. At the time of that broadcast, Officer
Gene Trotman, Jr., who was responding to the initial
report of a gunshot fired on Peck Street, observed a
station wagon matching the broadcast description of
the shooter’s vehicle traveling near the intersection of
Chapel and Church Streets in New Haven. Trotman first
called for backup units, then initiated a traffic stop of
the station wagon. Once backup units arrived, Trotman
approached the station wagon with his weapon drawn.
The driver of the station wagon was identified as Akeem
Whitely, and his passenger was identified as Jermaine
Reddick, the defendant. Trotman asked the defendant
where he was then coming from. The defendant
responded that he was coming from 38 Peck Street.
Trotman asked if there were any weapons in the vehicle,
and the defendant stated that there were. The defendant
and Whitely were then placed under arrest. A subse-
quent search of the station wagon revealed a nine milli-
meter semiautomatic handgun between the front
passenger seat and the center console. Upon further
questioning, the defendant stated that the gun was his
and that Whitely was simply giving him a ride.7
Contemporaneously with this traffic stop, Officer
Keron Bryce arrived at Peck Street to secure the scene
with McGlotten. While securing the scene, Bryce found
one nine millimeter shell casing on the pavement near
Marjorie Tillery’s Tahoe.8 Bryce then interviewed Marjo-
rie Tillery and Gainey about the events preceding the
shooting. During these interviews, Bryce saw a lacera-
tion on Gainey’s face and noticed that she had a swollen
lip. Upon further questioning by the officer, Gainey
indicated that the defendant had caused her injuries.
Thereafter, Bryce was notified that Trotman had pulled
over a vehicle matching the description given by Marjo-
rie Tillery. Bryce then transported Marjorie Tillery to
the intersection of Chapel and Church Streets to con-
duct a one-on-one showup identification of the suspect.
Once Bryce and Tillery had arrived at Trotman’s loca-
tion, Bryce shined a spotlight on the defendant, who
was then sitting in the backseat of a police cruiser.
Upon seeing the defendant, Marjorie Tillery positively
identified him as the person who had shot her brother.
The defendant was then transported to the New Haven
Police Department’s detention facility for processing.
A subsequent background check revealed that the
defendant had previously been convicted of a felony.9
A few miles away, Mickey Tillery arrived by ambu-
lance at Yale-New Haven Hospital. There, it was deter-
mined that the bullet had struck the femoral artery in
his right leg and that he was rapidly losing blood. Doc-
tors first performed cardiopulmonary resuscitation on
Mickey Tillery, then gave him a ‘‘massive [blood] trans-
fusion . . . .’’ Thereafter, doctors performed recon-
structive surgery on his femoral artery to halt the loss of
blood. Although the surgery proved successful, Mickey
Tillery had to remain in the hospital for the next two
weeks. On May 9, 2013, while still recovering in the
hospital, Mickey Tillery spoke with members of the
New Haven Police Department and agreed to view a
photographic array of eight individuals. Upon reviewing
the array, Mickey Tillery positively identified a photo-
graph of the defendant as that of the man who had
shot him.
Thereafter, by way of a long form information, the
state charged the defendant with assault in the first
degree in connection with the shooting of Mickey Til-
lery, assault in the third degree in connection with the
assault of Gainey, and criminal possession of a firearm.
The defendant elected a trial by jury, which took place
from April 21 through April 23, 2015. At trial, the defen-
dant argued that Mickey Tillery had been the initial
aggressor in the incident between them and that he had
shot Mickey Tillery in self-defense. After several hours
of deliberations, the jury found the defendant guilty of
all three charges. On July 10, 2015, the defendant was
sentenced to a total effective term of twenty-three years
in prison followed by three years of special parole.
This appeal followed. Additional facts will be set forth
as necessary.
I
On appeal, the defendant first claims that the state
violated his due process right to a fair trial because
the prosecutor, during closing argument, impermissibly
commented on the defendant’s failure to inform Trot-
man when he was first interviewed that he had shot
Mickey Tillery in self-defense. In support of his claim,
the defendant argues that the prosecutor failed to distin-
guish between the defendant’s prearrest and postarrest
silence, the latter of which is constitutionally protected.
The defendant thus argues that, by commenting on his
failure to tell the police when he first spoke with them
that he had acted in self-defense, the prosecutor used
his postarrest silence as circumstantial evidence of his
guilt, in violation of his privilege against self-incrimina-
tion, as applied in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct.
2240, 49 L. Ed. 2d 91 (1976).10 The defendant claims
that the challenged comments were ‘‘so egregious, so
deliberate, and so calculated to defeat the constitutional
right of the defendant and to abuse the authority of the
office of the prosecutor that it merits . . . the reversal
of the verdict, even though no objection was made
at trial.’’11
The state disagrees, arguing that ‘‘the defendant’s
claim fails on both the law and the facts [of this case].’’
In support of its position, the state argues that the
defendant’s pre-Miranda12 silence, unlike his post-
Miranda silence, is not constitutionally protected, and
thus a prosecutor is not prohibited from commenting
on a defendant’s pre-Miranda silence during closing
argument. The state further argues that the trial court
record does not establish when Trotman read the defen-
dant his Miranda rights, and thus there is no basis for
concluding that the prosecutor violated the defendant’s
fifth and fourteenth amendment rights under the rule
of Doyle v. Ohio, supra, 426 U.S. 610. Finally, the state
argues that even if the challenged comments were
improper, any error based upon them was harmless and
does not warrant reversal of the defendant’s conviction.
We agree with the state that the record does not estab-
lish when the defendant received his Miranda warning,
and thus there is no basis upon which to conclude that
the prosecutor’s comments violated Doyle.
The following additional facts are necessary for our
resolution of this claim. As discussed in the preceding
paragraphs, the defendant advanced a claim of self-
defense throughout the trial. In support of his claim,
he attempted to establish, through his cross-examina-
tion of the state’s witnesses, that Mickey Tillery was
approximately six inches taller than he was and out-
weighed him by as much as seventy pounds.13 On cross-
examination of Mickey Tillery, the defendant elicited
admissions as to his anger toward the defendant and
his desire to fight him on the evening of the shooting.
Mickey Tillery, in fact, agreed with defense counsel’s
statement that he ‘‘would have . . . beat the crap out
of [the defendant],’’ that he would not have let anyone
break up the fight, and that he did not intend to stop
fighting with the defendant until he ‘‘got tired of hitting
him.’’ Defense counsel also sought to emphasize that
the defendant had ‘‘tried to get away’’ from Mickey
Tillery before the shooting occurred.
As part of its case-in-chief, the state presented the
testimony of Trotman, the officer who had stopped the
station wagon at the intersection of Church and Chapel
Streets. Although both parties inquired of Trotman as
to the sequence of events during that traffic stop, nei-
ther the state14 nor the defendant15 established when in
that sequence the defendant was arrested, whether the
arrest preceded or followed Trotman’s questioning of
the defendant, whether the defendant was ever given
his Miranda warnings, and, if so, when those warnings
were given in relation to Trotman’s questions.
After two days of evidence, the state rested its case-
in-chief. The defendant thereafter elected to not testify
in his own defense and, after being canvassed by the
court as to that decision, rested his case without pre-
senting any defense witnesses. Closing arguments were
made the following day.
During closing argument, the prosecutor recounted
the events leading up to the shooting, emphasizing, inter
alia, that during the initial encounter, the defendant had
rolled up the car’s windows and locked its doors. The
prosecutor then recalled for the jury that Mickey Tillery,
who was unarmed, had backed away from the defen-
dant’s vehicle after its windows were rolled up. ‘‘Sud-
denly,’’ the prosecutor argued, ‘‘he hears the door on
the passenger’s side unlock and what happens? The
defendant comes out, pulls out a gun, aims it at Mickey
Tillery, and fires at him, striking him in his upper right
leg. . . . I mean, ask yourself, when you shoot some-
body who’s doing that, is that self-defense? It’s not self-
defense, ladies and gentlemen.’’
The prosecutor also discussed, without objection, the
defendant’s conversation with Trotman following the
shooting. More specifically, the prosecutor stated:
‘‘[W]hat’s said by Mr. Reddick at that time? Well, he
tells Officer Trotman that he had been over at 38 Peck
Street. He also tells . . . Officer Trotman that the gun
was his and that Mr. Whitely was a friend of his and
was just giving him a ride. That’s what he told Officer
Trotman. What didn’t he say to Officer Trotman? You
know, this is somebody who is going to now claim
that he was acting in self-defense. I mean, did he say
anything to Officer Trotman, you know, geez, you know
. . . I was just accosted by this [madman] and I had
to shoot him. Did he mention the shooting at all? He
didn’t mention the shooting at all. I . . . don’t know
how he thought he was going to get away this. But he,
for whatever reason, was willing to admit that he had
been over to Peck Street and that the gun was his, but
he never admitted to doing any shooting or . . . that
he had to shoot anybody in self-defense, never made
. . . any mention of that, whatsoever.’’ Thereafter, the
prosecutor concluded his opening closing argument.
At the outset of his closing argument, defense counsel
commented that ‘‘99 percent of the facts of this case
are not disputed. You know what happened; it’s just
your interpretation of it with a couple of minor twists.’’
Counsel then argued that Marjorie Tillery ‘‘was going
[to Peck Street] for vengeance. She was going to be a
vigilante. She was taking things into her own hands.’’
Thereafter, counsel claimed that Marjorie Tillery ‘‘let
[Mickey Tillery] loose’’ on the defendant. Counsel
argued that, at that moment, it was the middle of the
night, the defendant did not recognize Mickey Tillery,16
he was being confronted by a larger man who was
attempting to pull him out of the car window and that,
fearing for his safety, he shot Mickey Tillery in self-
defense.
Thereafter, defense counsel argued that the state had
failed to carry its burden of proof that the defendant
had not acted in self-defense that night. In support of
his argument, counsel reminded the jury that it could
infer that (1) the defendant reasonably believed that he
faced serious physical injury because Mickey Tillery
admitted that he intended to seriously injure the defen-
dant; (2) the defendant reasonably believed that Mickey
Tillery may have had a weapon in the car; (3) the defen-
dant tried to avoid the fight and ‘‘stayed in the car for
as long as he could’’; and (4) the defendant had not
used deadly force because he had shot Mickey Tillery
in the leg and fired only once before fleeing the area.
Counsel then concluded his argument without
addressing the state’s characterization of the defen-
dant’s interaction with Trotman.
In its rebuttal argument, the state reiterated that the
jury should not credit the defendant’s claim of self-
defense because the defendant had not told officers at
the time of his arrest either that he had shot Mickey
Tillery or that he had done so in self-defense. More
specifically, the prosecutor argued that, ‘‘when the
defendant was stopped by Officer Trotman, shortly
after the shooting, you know, he didn’t say, hey, geez,
you know, I’m glad . . . you can’t believe what just
happened to me. This madman was coming at me and
I had to shoot him. I thought he was going to kill me.
He doesn’t even mention to Officer Trotman that he
shot anybody. So, this wasn’t self-defense. If it was self-
defense, he would have told the police right then and
there what had happened. He didn’t.’’
Before reaching the merits of the defendant’s claims,
we first set forth the relevant portions of our law of
self-defense. ‘‘Under our Penal Code, self-defense, as
defined in [General Statutes] § 53a-19 (a) . . . is a
defense, rather than an affirmative defense. . . . That
is, [the defendant] merely is required to introduce suffi-
cient evidence to warrant presenting his claim of self-
defense to the jury. . . . Once the defendant has done
so, it becomes the state’s burden to disprove the defense
beyond a reasonable doubt. . . . As these principles
indicate, therefore, only the state has a burden of per-
suasion regarding a self-defense claim: it must disprove
the claim beyond a reasonable doubt.
‘‘It is well settled that under § 53a-19 (a), a person
may justifiably use deadly physical force in self-defense
only if he reasonably believes both that (1) his attacker
is using or about to use deadly physical force against
him, or is inflicting or about to inflict great bodily harm,
and (2) that deadly physical force is necessary to repel
such attack. . . . [Our Supreme Court] repeatedly
[has] indicated that the test a jury must apply in analyz-
ing the second requirement . . . is a subjective-objec-
tive one. The jury must view the situation from the
perspective of the defendant. Section 53a-19 (a)
requires, however, that the defendant’s belief ultimately
must be found to be reasonable.’’ (Internal quotation
marks omitted.) State v. Abney, 88 Conn. App. 495,
502–503, 869 A.2d 1263, cert. denied, 274 Conn. 906,
876 A.2d 1199 (2005). Under subsection (b) of § 53a-
19, however, ‘‘a person is not justified in using deadly
physical force upon another person if he or she knows
that he or she can avoid the necessity of using such
force with complete safety . . . by retreating . . . .’’
Moreover, under subsection (c) of § 53a-19, ‘‘a person
is not justified in using physical force when (1) with
intent to cause physical injury or death to another per-
son, he provokes the use of physical force by such other
person, or (2) he is the initial aggressor, except that
his use of physical force upon another person under
such circumstances is justifiable if he withdraws from
the encounter and effectively communicates to such
other person his intent to do so, but such other person
notwithstanding continues or threatens the use of physi-
cal force . . . .’’
Against this backdrop, ‘‘[w]e set forth the legal princi-
ples that guide our analysis [of the defendant’s claims]
and our standard of review. In Doyle [v. Ohio, supra,426 U.S. 610] . . . the United States Supreme Court
held that the impeachment of a defendant through evi-
dence of his silence following his arrest and receipt of
Miranda warnings violates due process. . . . Like-
wise, our Supreme Court has recognized that it is also
fundamentally unfair and a deprivation of due process
for the state to use evidence of the defendant’s post-
Miranda silence as affirmative proof of guilt . . . .
Miranda warnings inform a person of his right to
remain silent and assure him, at least implicitly, that
his silence will not be used against him. . . . Because
it is the Miranda warning itself that carries with it the
promise of protection . . . the prosecution’s use of [a
defendant’s] silence prior to the receipt of Miranda
warnings does not violate due process. . . . Therefore,
as a factual predicate to an alleged Doyle violation, the
record must demonstrate that the defendant received
a Miranda warning prior to the period of silence that
was disclosed to the jury. . . . The defendant’s claim
raises a question of law over which our review is ple-
nary.’’ (Citations omitted; internal quotation marks
omitted.) State v. Lee-Riveras, 130 Conn. App. 607, 612–
13, 23 A.3d 1269, cert. denied, 302 Conn. 937, 28 A.3d
992 (2011); see also State v. Bereis, 117 Conn. App. 360,
373, 978 A.2d 1122 (2009).
In the present case, the defendant claims that the
prosecutor’s remarks during his opening and rebuttal
closing arguments violated his constitutional rights
under the fifth and fourteenth amendments, as applied
in Doyle v. Ohio, supra, 426 U.S. 610, not to have the
exercise of his right to remain silent used against him
in a later criminal proceeding. In support of his position,
the defendant argues that, although ‘‘[p]ostarrest
silence is treated differently from prearrest silence,’’
the facts of this case demonstrate that ‘‘there was a
period under anyone’s definition of arrest during which
the defendant was silent as to his exculpatory explana-
tion . . . .’’ The defendant further asserts that the pros-
ecutor failed to distinguish between the defendant’s
prearrest and postarrest silence, and thus the prosecu-
tor’s comments, which ‘‘encompassed the entirety of
the time the defendant was under the custody of Trot-
man,’’ violated the defendant’s fifth and fourteenth
amendment rights to remain silent. Furthermore,
although the defendant concedes that Trotman did not
testify as to when, if at all, the defendant received his
Miranda warnings in the course of the traffic stop, he
maintains that the right to remain silent is not contin-
gent upon the receipt of Miranda warnings, but instead
‘‘inheres automatically under the fifth amendment.’’ We
are not persuaded.
At the outset, we address two fundamental flaws in
the defendant’s argument. We first note that, although
the defendant is correct in his assertion that the right
to remain silent is not contingent upon the receipt of
Miranda warnings, ‘‘[i]t has long been settled that the
privilege [against self-incrimination] generally is not
self-executing and that a witness who desires its protec-
tion must claim it.’’ (Citation omitted; internal quotation
marks omitted.) Salinas v. Texas, U.S. , 133 S.
Ct. 2174, 2178, 186 L. Ed. 2d 376 (2013). In the present
case, however, there is no evidence to support the
notion that the defendant, in the absence of any
Miranda warning, expressly invoked his constitutional
right to remain silent at any time during his encounter
with Trotman.
We further note that, in support of his claim that
the prosecutor violated the constitutional protections
described in Doyle, the defendant relies upon the fact
that he was either in police custody or under formal
arrest when he spoke with Trotman.17 A review of rele-
vant federal and state case law demonstrates that the
defendant’s reliance on these facts is misplaced. In
Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L.
Ed. 2d 490 (1982), the United States Supreme Court
summarized its evolving jurisprudence under Doyle by
explaining that the ‘‘use of silence for impeachment
was fundamentally unfair in Doyle because Miranda
warnings inform a person of his right to remain silent
and assure him, at least implicitly, that his silence will
not be used against him. . . . [Thus] Doyle bars the
use against a criminal defendant of silence maintained
after receipt of governmental assurances.’’ (Emphasis
added; internal quotation marks omitted.) Id., 606. In
State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert.
denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550(1986), our Supreme Court adopted the rationale of
Fletcher, holding that ‘‘the absence of any indication in
the record that the silence of a defendant had been
preceded by a Miranda warning rendered Doyle inappli-
cable, even though the inquiry of the prosecutor per-
tained to the time of arrest.’’ Id., 524–25; see also State
v. Berube, 256 Conn. 742, 751–52, 775 A.2d 966 (2001);
State v. Plourde, 208 Conn. 455, 467, 545 A.2d 1071(1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102
L. Ed. 2d 979 (1989).
Accordingly, our courts have recognized that the giv-
ing of Miranda warnings, even in the absence of a
formal arrest, entitles the defendant to the Doyle protec-
tions because such warnings provide governmental
assurance, at least implicitly, that the defendant’s
silence will not be used against him. See State v. Mont-
gomery, 254 Conn. 694, 715, 759 A.2d 995 (2000). We
have, however, distinguished the former cases from
cases where no Miranda warnings were given. In so
doing, we have held that the act of being placed under
arrest does not, by itself, provide governmental assur-
ance that the defendant’s silence will not be used
against him at a later date. E.g., State v. Plourde, supra,
208 Conn. 466–67. Thus, it is the giving of Miranda
warnings, not the act of being placed under arrest, that
cloaks a defendant with the protections of Doyle v.
Ohio, supra, 462 U.S. 610. See B. Gershman, Prosecu-
torial Misconduct (2d Ed. 2011–2012) § 10:17, p. 416
(‘‘[c]learly, the operative fact in Jenkins [v. Anderson,
447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980)],
as in Doyle, is the giving of Miranda warnings, not
the arrest’’).
As we have long held, if a defendant alleges a constitu-
tional violation, he bears the initial burden of establish-
ing that the alleged violation occurred; it is only then
that the state assumes the burden of demonstrating
that the constitutional error was harmless beyond a
reasonable doubt. See, e.g., State v. Jones, 65 Conn.
App. 649, 654, 783 A.2d 511 (2001); see also State v.
Nasheed, 121 Conn. App. 672, 678–79, 997 A.2d 623,
cert. denied, 298 Conn. 902, 3 A.3d 73 (2010). Moreover,
when analyzing a defendant’s claim that a prosecutor
violated the protection set forth in Doyle, we have held
that ‘‘[i]t is essential to know the timing of these conver-
sations because the use at trial of silence prior to the
receipt of Miranda warnings does not violate due pro-
cess.’’ (Emphasis in original; internal quotation marks
omitted.) State v. Berube, supra, 256 Conn. 751. In the
present case, the record is unclear as to when, if at
all, Trotman gave Miranda warnings to the defendant.
Accordingly, under the present facts, ‘‘we are unable
to determine whether a Doyle violation occurred.’’ State
v. Gonzalez, 167 Conn. App. 298, 302 n.2, 142 A.3d 1227,
cert. denied, 323 Conn. 929, 149 A.3d 500 (2016). In light
of the foregoing, we conclude that there is no basis
upon which to conclude that the prosecutor’s com-
ments during closing argument violated the defendant’s
due process rights pursuant to Doyle v. Ohio, supra,426 U.S. 610. In so concluding, we need not address
the subsequent question of whether such violation, if
established, was harmless beyond a reasonable doubt.
Cf. State v. Montgomery, supra, 254 Conn. 717–18.
II
The defendant’s final claim on appeal is that the pros-
ecutor committed several improprieties in closing argu-
ment that combined to deprive him of his due process
right to a fair trial. More specifically, the defendant
argues that the prosecutor impermissibly (1) voiced
his personal opinion as to Gainey’s credibility; and (2)
appealed to the emotions of the jury by referencing the
recent trend of increasing gun violence in New Haven
and repeatedly referring to the defendant as a ‘‘con-
victed felon’’ and a ‘‘predator . . . .’’ The defendant
claims, on the basis of such alleged improprieties, that
he is entitled to the reversal of his conviction on all
charges and a new trial.
In response, the state first argues that the defendant
misquotes the record and misrepresents the context
in which the prosecutor’s challenged comments were
allegedly made. It thus argues, as a threshold matter,
that the prosecutor’s comments, when properly under-
stood, were not improper because (1) the comments
as to Gainey’s credibility were ‘‘based in the evidence
and the reasonable inferences drawn therefrom’’; (2)
the comments about gun violence in New Haven only
referred to facts about which the jurors had common
knowledge, and the prosecutor never suggested that by
finding the defendant guilty, the jury could somehow
lessen the problem of gun violence; and (3) the prosecu-
tor’s comments regarding the defendant’s felony convic-
tion were true in fact, supported by the record, and
relevant to a substantive issue in the case. Finally, the
state argues that, ‘‘to the extent that this court finds any
impropriety, the defendant has failed to demonstrate a
violation of his right to a fair trial.’’
Before addressing the defendant’s individual claims
of impropriety, we set forth our standard of review and
governing legal principles. ‘‘[W]hen a defendant raises
on appeal a claim that improper remarks by the prosecu-
tor deprived the defendant of his constitutional right
to a fair trial, the burden is on the defendant to show,
not only that the remarks were improper, but also that,
considered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of
due process. . . . In analyzing whether the prosecutor’s
comments deprived the defendant of a fair trial, we
generally determine, first, whether the [prosecutor]
committed any impropriety and, second, whether the
impropriety or improprieties deprived the defendant of
a fair trial.’’ (Citation omitted; internal quotation marks
omitted.) State v. Felix R., 319 Conn. 1, 8–9, 124 A.3d 871(2015). Put differently, ‘‘[impropriety] is [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 . . . .’’ (Internal quotation marks omitted.)
Id., 9, quoting State v. Warholic, 278 Conn. 354, 361–62,
897 A.2d 569 (2006); see also State v. Ciullo, 314 Conn.
28, 35, 100 A.3d 779 (2014). ‘‘[T]he burden is on the
defendant to show, not only that the remarks were
improper, but also that, considered in light of the whole
trial, the improprieties were so egregious that they
amounted to a denial of due process.’’ (Internal quota-
tion marks omitted.) State v. Medrano, 308 Conn. 604,
620, 65 A.3d 503 (2013). ‘‘As we have indicated, our
determination of whether any improper conduct by the
state’s attorney violated the defendant’s fair trial rights
is predicated on the factors set forth in State v. Wil-
liams, [204 Conn. 523, 540, 529 A.2d 653 (1987)].’’18
(Internal quotation marks omitted.) State v. Warholic,
supra, 362.
‘‘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. . . .
‘‘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.
. . . While the privilege of counsel in addressing the
jury should not be too closely narrowed or unduly ham-
pered, it must never be used as a license to state, or
to comment upon, or to suggest an inference from, facts
not in evidence, or to present matters which the jury
[has] no right to consider.’’ (Internal quotation marks
omitted.) State v. Medrano, supra, 308 Conn. 611–13.
With these general principles in mind, we address each
of the defendant’s arguments.
A
Gainey’s Credibility
The defendant first argues that the prosecutor
usurped the jury’s role in assessing Gainey’s credibility,
instead ‘‘[making] that determination for the jury’’ by
offering his personal belief that she had lied under oath
regarding her injuries. The following additional facts
are necessary for our resolution of this claim.
From the outset of her direct examination, Gainey
admitted, inter alia, that she was still in love with the
defendant, she did not wish to testify, and she was
testifying only because she had been served with a
subpoena. Throughout the course of her examination,
she vehemently denied that the defendant had hit her
on the evening of the shooting or that he was, in any
way, responsible for the bruises and cuts she sustained
that evening. Rather, she maintained that, although she
could not recall what she had had to drink that evening,
she was heavily intoxicated, as a result of which she
had fallen down her stairs. Gainey stated that, despite
informing the police after the shooting that she had
fallen down the stairs, she had been pressured into
giving a statement implicating the defendant, and thus
had lied in her statements to police.19 She also denied
telling either her neighbor or the police that the defen-
dant had hit her that evening.
After Gainey became increasingly unresponsive to
the state’s questions during the trial, the court permitted
the prosecutor to examine her as a hostile witness.
Thereafter, the prosecutor introduced into evidence a
redacted video20 of Gainey’s April 29, 2013 interview
with the New Haven police. In that interview, Gainey
told the police, inter alia, that the defendant had struck
her several times in the face, and that she had attempted
to fight back and, thereafter, had run over to her neigh-
bor’s house and told her neighbor about the defendant’s
physical abuse.
During his initial closing argument to the jury, the
prosecutor argued, inter alia, that Gainey had violated
her oath to testify truthfully as to the source of her
injuries that night. In support of that argument, the
prosecutor reminded the jury that Gainey had told the
police that the defendant had struck her several times
in the face that evening, but she had never mentioned
falling down the stairs. The prosecutor then asked the
jury to recall Gainey’s demeanor while testifying and
her admission that she was testifying only because the
state had subpoenaed her. In an attempt to explain why
Gainey had offered two drastically different accounts
as to the source of her injuries, the prosecutor stated,
‘‘[w]ell, people don’t come into court and lie just for
the heck of it. I mean, I guess there . . . are pathologi-
cal liars that might do that; I’m not claiming that Ms.
Gainey is that type of person. You know, she came in
here. She admitted that she’s in love with the defendant.
She has a young daughter by him. The state would
submit, use your common sense on that issue. Her moti-
vation for fabricating here in court about how she got
hurt was because she was trying to help Mr. Reddick.
But, again . . . for you to make that decision, you’d
had an opportunity to review and see her actual inter-
view at the New Haven Police Department the night of
that incident. She was coherent. She answered ques-
tions in a manner that was appropriate. She did not
have slurred speech. She never asked to use the bath-
room. There was absolutely no evidence whatsoever
that during that interview that she was intoxicated or
drunk, nothing. So, she came in here and there were
some things that had a kernel of truth to it, but for the
most part, as far as how she got injured that night, she
did not want to blame that on Mr. Reddick because she
was trying to protect him and that’s what she did. You
know, she’s a victim of domestic abuse. She’ll take a
beating and not report it to the police. She’s blinded
by her love for the defendant and . . . [her] feelings
for him. She’s unable to protect herself from this abuse.
She’s . . . unable to prevent her daughter from seeing
it happen. But, you know, unfortunately, she’s blinded
by her feelings for the defendant.’’
It is well established that, although ‘‘[a] prosecutor
may not express his [or her] own opinion, directly or
indirectly, as to the credibility of the witnesses . . .
[i]t is not improper for the prosecutor to comment upon
the evidence presented at trial and to argue the infer-
ences that the jurors might draw therefrom . . . .’’
(Internal quotation marks omitted.) State v. Ciullo,
supra, 314 Conn. 40–41. Moreover, we have held that
‘‘[i]t is permissible for a prosecutor to explain that a
witness either has or does not have a motive to lie.’’
State v. Ancona, 270 Conn. 568, 607, 854 A.2d 718 (2004),
cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed.
2d 780 (2005). In the present case, the prosecutor’s
comments did not amount to statements of personal
opinion as to whether Gainey was, in fact, lying. Rather,
the prosecutor argued that Gainey had presented two
drastically different accounts as to how she was injured
on the evening of the shooting, that she was biased by
her feelings for the defendant, and that she had a motive
to testify favorably for the defense. From those facts,
the prosecutor asked the jury to ‘‘use [its] common
sense on that issue’’ and to reject Gainey’s claim that
she had fallen down the stairs that night. Such argument
does not amount to prosecutorial impropriety; ‘‘instead,
the prosecutor’s statements, when placed in the context
in which they were made, are reasonable inferences
the jury could have drawn from the evidence adduced
at trial.’’ State v. Ciullo, supra, 42. Because we conclude
that the defendant’s first claim does not amount to
prosecutorial impropriety, we need not consider
whether it ‘‘caused or contributed to a due process
violation . . . .’’ (Internal quotation marks omitted.)
State v. Warholic, supra, 278 Conn. 362.
B
Appealing to Jurors’ Emotions
The defendant’s final argument on appeal is that the
prosecutor improperly appealed to the jurors’ emotions
(1) by arguing that the defendant’s conduct was
‘‘another example of the unnecessary and senseless gun
violence that’s become all too common [in] the city of
New Haven’’; and (2) by engaging in character assassi-
nation of the defendant by referring to him as ‘‘a preda-
tor’’ and ‘‘a convicted felon . . . [who] doesn’t care
about the law.’’ The state responds that the prosecutor’s
comments about gun violence in New Haven were not
improper or, alternatively, that they did not violate the
defendant’s right to a fair trial. As to the defendant’s
remaining claim, the state first argues that the word
‘‘predator’’ was never used to describe the defendant,
but instead was used to describe the kind of person,
unlike Mickey Tillery, against whom the defendant
might have needed to use deadly force in self-defense.
The state further argues that the prosecutor’s comments
about the defendant being a convicted felon properly
referred to the evidence presented and the reasonable
inferences that could be drawn therefrom. We address
each argument in turn.
We first address the prosecutor’s comment regarding
general patterns of gun violence in New Haven. At the
close of the prosecutor’s initial remarks to the jury,
the prosecutor summarized the events surrounding the
shooting and the defendant’s ability, but unwillingness,
to leave the area safely before he shot Mickey Tillery.
In that regard, the prosecutor stated that ‘‘what this
case is, it’s another example of the unnecessary and
senseless gun violence that’s become all too common
in the city of New Haven. That’s what this is. This
defendant was not justified in using deadly physical
force against Mickey Tillery. This was not self-defense,
ladies and gentlemen. The defendant didn’t shoot
Mickey Tillery to protect himself. He was angry at
Mickey Tillery for intervening in this domestic abuse
situation he had going on with Myesha [Gainey]. He
became angry. He was going to teach him a lesson.
Mind your own business, stay out of the relationship.
He taught him a lesson, all right.’’ (Emphasis added.)
As discussed in the preceding paragraphs, ‘‘a prosecu-
tor may argue the state’s case forcefully, [provided the
argument is] fair and based upon the facts in evidence
and the reasonable inferences to be drawn therefrom.
. . . 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.’’
(Internal quotation marks omitted.) State v. Medrano,
supra, 308 Conn. 613. Accordingly, ‘‘the prosecutor
should refrain from injecting issues broader than the
guilt or innocence of the accused under the controlling
law, or by making predictions of the consequences of
the jury’s verdict . . . .’’ (Internal quotation marks
omitted.) A. Spinella, Connecticut Criminal Procedure
(1985) p. 713, quoting State v. Gold, 180 Conn. 619, 659,
431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320,
66 L. Ed. 2d 148 (1980). Here, we agree with the defen-
dant that the prosecutor’s reference to broader issues
of gun violence in New Haven was improper because
it was extraneous and irrelevant to the issues before
the jury.
We turn next to the defendant’s argument that the
prosecutor engaged in character assassination. We first
dispose of the defendant’s subsidiary claim that the
prosecutor violated his right to a fair trial by referring
to the defendant as a ‘‘predator’’ in closing argument.
Simply stated, he did not. Instead, as the state has
argued, the prosecutor used that word only when he
argued as follows: ‘‘[T]his is not a typical self-defense
claim. You know, typically we think of self-defense,
you know, someone minding their own business, doing
nothing they shouldn’t be doing and being accosted by
some predator who sets upon them and . . . they have
this confrontation with the predator, they’re forced to
protect themselves. That’s not what happened here.’’
(Emphasis added.) It is thus readily apparent that, when
using the term ‘‘predator’’ in his closing argument, the
prosecutor was not referring to the defendant. Accord-
ingly, we conclude that this comment was not improper.
Finally, we address the prosecutor’s references to
the defendant’s prior felony conviction during his open-
ing and rebuttal closing arguments to the jury. In his
opening argument, the prosecutor recalled for the jury
that Officer Bryce had testified that he had performed
a background check on the defendant and learned ‘‘that
the defendant had been previously convicted of a fel-
ony.’’ When summarizing the evidence supporting count
two, criminal possession of a firearm, he argued that
the defendant had admitted that it was his gun, the
gun was found in an operable condition, and that ‘‘Mr.
Reddick, who is a convicted felon, had no right to have
that weapon that evening.’’ The defendant did not object
to these remarks.
In his rebuttal argument, however, the prosecutor
made two additional references to the defendant’s fel-
ony conviction for very different purposes. On the first
occasion, he argued that the defendant’s claim of self-
defense should be rejected because the defendant ‘‘cre-
ated this situation’’ by assaulting Gainey and then
remaining at Peck Street, knowing that Gainey’s family
‘‘wasn’t going to stand for that.’’ ‘‘Right after the beat-
ing,’’ the prosecutor remarked, ‘‘what did [the defen-
dant] do? . . . He arms himself with a nine millimeter
semiautomatic pistol, which, originally, had seventeen
live rounds. You know, he was ready for trouble. He
was locked and loaded.
‘‘He was a convicted felon. He knew he couldn’t have
that gun. He doesn’t care about the law. You think [he]
cared about the law when his fists were smashed into
his girlfriend’s face? He didn’t care. He doesn’t care.
He knew that there was going to be consequences for
his actions. . . . [I]f he thought that the family or
Myesha [Gainey] were going to call the New Haven
police, do you think he would have been sitting with a
nine millimeter fully loaded pistol waiting for the New
Haven police to show up? I don’t think so.’’
On the second occasion, the prosecutor referenced
the defendant’s felony conviction while discussing the
circumstances immediately preceding the shooting.
Specifically, he remarked that the defendant was able
to lock the doors and windows to the station wagon,
after which ‘‘[h]e could have had his buddy drive away’’
or, alternatively, he could have displayed the pistol and
told Mickey Tillery, ‘‘look, stay the hell away from me.’’
Had he pursued either of those alternative courses, the
prosecutor argued, ‘‘[h]e could have went up to his
apartment at 38 Peck Street, locked the door, and called
the police. Did he do that? No. Well, he’s not going to
do that because he’s a convicted felon in the possession
of a pistol.’’ Thereafter, the prosecutor concluded his
closing argument by stating, inter alia: ‘‘So I want . . .
you to consider all of those things that he could have
done. . . . [T]his was not a necessary shooting
because this shooting was not self-defense. That’s not
what the shooting was about. It was motivated by the
defendant wanting to teach the Tillery family a lesson.’’
The defendant voiced no objection to any of these
comments.
The parties do not dispute that ‘‘[e]vidence of other
crimes, wrongs or acts of a person is admissible . . .
to prove . . . an element of the crime. . . .’’ Conn.
Code Evid. § 4-5 (c); see also, e.g., State v. James, 69
Conn. App. 130, 135, 793 A.2d 1200, cert. denied, 260
Conn. 936, 802 A.2d 89 (2002); State v. Hanks, 39 Conn.
App. 333, 344, 665 A.2d 102, cert. denied, 235 Conn. 926,
666 A.2d 1187 (1995). In this case, the prosecutor’s
comments during his opening closing argument merely
summarized Bryce’s unobjected-to testimony that the
defendant had, in fact, been convicted of a felony, which
was an essential element of the charge of criminal pos-
session of a firearm.21 We conclude, therefore, that this
remark was wholly proper, and obviously did not consti-
tute prosecutorial impropriety.
We conclude, however, that the prosecutor’s further
commentary regarding the defendant’s prior felony con-
viction was improper. It is well established that ‘‘[a]
prosecutor may not appeal to the emotions of the jurors
by engaging in character assassination and personal
attacks against . . . the defendant . . . .’’ State v.
Warholic, supra, 278 Conn. 389. As discussed in the
preceding paragraphs, ‘‘[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 impartial justice for the guilty as much
as for the innocent. . . . 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.’’ (Internal quotation marks omitted.) State
v. Medrano, supra, 308 Conn. 612. Thus, ‘‘[a]lthough a
state’s attorney may argue that the evidence proves the
defendant guilty, he may not stigmatize the defendant
by the use of epithets which characterize him as guilty
before an adjudication of guilt.’’ (Internal quotation
marks omitted.) Id., 615.
In its brief to this court, the state attempts to walk
a fine line by arguing that the prosecutor’s comments
did not suggest that the defendant did not care about
the law merely because he was a convicted felon but,
instead, suggested that the defendant did not care about
the law because, despite the fact that he had previously
been convicted of a felony, he assaulted his girlfriend,
illegally armed himself with a nine millimeter pistol,
and waited for the eventual confrontation with Mickey
Tillery. We are unpersuaded.
As previously discussed, the defendant did not testify
in this case, and thus his prior felony conviction could
not be used to challenge the veracity of his testimony.
See Conn. Code Evid. § 6-7 (b). Accordingly, the prose-
cutor could only use evidence of the defendant’s prior
conviction to establish an essential element of a crime
or by utilizing another recognized exception under § 4-
5 of the Connecticut Code of Evidence. His comments,
however, suggested that the defendant, a convicted
felon, was not a law-abiding citizen, and thus had a
propensity to engage in the type of criminal conduct
for which he had been charged. Our Code of Evidence
unequivocally prohibits the use of prior convictions to
establish a defendant’s propensity for criminal behav-
ior. Conn. Code Evid. § 4-5 (a); see, e.g., State v. Ellis,
270 Conn. 337, 354, 852 A.2d 676 (2004). We thus agree
with the defendant that these comments were also
improper.
‘‘Having determined that several of the prosecutor’s
statements were improper, we now turn to whether the
defendant has proven that the improprieties, cumula-
tively, ‘so infected the trial with unfairness as to make
the [conviction] a denial of due process.’ ’’ State v.
Medrano, supra, 308 Conn. 620. ‘‘To determine whether
the defendant was deprived of his due process right to
a fair trial, we must determine whether the sum total
of [the prosecutor’s] improprieties rendered the defen-
dant’s [trial] fundamentally unfair, in violation of his
right to due process. . . . The question of whether the
defendant has been prejudiced by prosecutorial [impro-
priety], therefore, depends on whether there is a reason-
able likelihood that the jury’s verdict would have been
different absent the sum total of the improprieties. . . .
This inquiry is guided by an examination of the follow-
ing Williams factors: the extent to which the [impropri-
ety] was invited by defense conduct or argument . . .
the severity of the [impropriety] . . . the frequency of
the [impropriety] . . . the centrality of the [impropri-
ety] 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. Warholic, supra, 278 Conn. 396.
With respect to the first Williams factor, there is
nothing in the record before us to suggest that the
prosecutor’s comments about gun violence in New
Haven or the defendant’s felony conviction were invited
by the defendant’s conduct or argument.22 Next, with
respect to the second Williams factor, the severity of
the improprieties, we agree with the state that the prose-
cutor’s remarks regarding gun violence in New Haven
did not go so far as to ‘‘imp[ly] that convicting the
defendant would alleviate the gun violence in New
Haven.’’ Moreover, although we conclude that the pros-
ecutor’s comments regarding the defendant’s felony
conviction were improper, we are cognizant that the
defendant failed to object, at any point, to the remarks
now at issue. As we have repeatedly held, ‘‘the determi-
nation of whether a new trial or proceeding is warranted
depends, in part, on whether defense counsel has made
a timely objection to any [incident] of the prosecutor’s
improper [conduct]. When defense counsel does not
object, request a curative instruction or move for a
mistrial, he presumably does not view the alleged
impropriety as prejudicial enough to seriously jeopar-
dize the defendant’s right to a fair trial.’’ (Internal quota-
tion marks omitted.) State v. Warholic, supra, 278
Conn. 361.
With respect to the third Williams factor, the fre-
quency of the alleged improprieties, we note that the
prosecutor’s comment regarding gun violence in New
Haven was an isolated remark and was not part of a
larger pattern or theme in the state’s case. Cf. State v.
Ceballos, 266 Conn. 364, 411, 832 A.2d 14 (2003). As for
the frequency of his comments regarding the defen-
dant’s felony conviction, these questionable comments
occurred only twice, and thus we conclude that the
frequency of these comments does not rise to the level
of the frequency of impropriety that was identified and
admonished by our Supreme Court in State v. Williams,
supra, 204 Conn. 547.
As to the fourth Williams factor, whether the chal-
lenged comments touched upon the central issues
before the jury, we agree with the state that, with
respect to the defendant’s claim of self-defense, the
central issue was whether the jury credited the Tillerys’
account of what transpired on the evening of the shoot-
ing. Against that background, we conclude that the pros-
ecutor’s comment regarding gun violence in New Haven
had little, if any, relation to that issue, and thus did
not strike at the central issues of this case. As for his
comments regarding the defendant’s felony conviction,
however, we believe that such comments did touch
upon the central issue of self-defense, and thus we
resolve the fourth Williams factor in the defendant’s
favor.
As for the fifth Williams factor, the strength of the
curative measures adopted, we note that the defendant
did not request, and the court did not give, any curative
instruction to the jury that it should disregard any of the
prosecutor’s improper comments. Although the court
instructed the jury, with respect to the elements of
criminal possession of a firearm, that ‘‘the state must
prove beyond a reasonable doubt, number one, that the
defendant possessed a firearm and, number two, that
he was prohibited from possessing a firearm at the time
because he was convicted of a felony,’’ the court did
not provide any limiting instruction concerning the
prosecutor’s improper remarks about the defendant’s
felony conviction. With respect to his comments on gun
violence in New Haven, the court instructed the jury
only generally, that ‘‘[y]ou may not go outside the evi-
dence introduced in court to find the facts. This means
you may not [resort] to guesswork, conjuncture, or
suspicion, and you must not be influenced by any per-
sonal likes or dislikes, opinions, prejudices, or sympa-
thy. . . . Arguments by counsel are not evidence. . . .
What they have said in their closing arguments is
intended to help you interpret the evidence, but it is not
evidence.’’ We conclude that these instructions were
sufficient to cure any prejudice resulting from the prose-
cutor’s improper comment regarding gun violence in
New Haven. See, e.g., State v. Williams, supra, 204
Conn. 534 (‘‘Absent a fair indication to the contrary,
the jury is presumed to follow the court’s instructions.
. . . There is nothing in this record to suggest that it
did not do so.’’ [Citation omitted.]).
Finally, we emphasize that, with respect to the sixth
Williams factor, the strength of the state’s case, the
state’s case against the defendant was strong. During
its case-in-chief, the state presented, inter alia: (1) testi-
mony of two eyewitnesses to the shooting, who testified
consistently that Mickey Tillery had his hands raised
and was moving away from the defendant and his vehi-
cle when the defendant emerged from the station wagon
and shot him; (2) photographic and testimonial evi-
dence demonstrating that the location of Marjorie Til-
lery’s Tahoe did not prevent the station wagon from
leaving the parking lot had the defendant attempted to
do so; (3) testimony that the defendant made inculpa-
tory statements to the police officers shortly after the
shooting; and (4) forensic evidence linking the gun
found in the defendant’s possession to the shell casing
recovered at the scene. As such, the remaining issue
to be decided was whether the defendant acted in self-
defense. As more fully explained throughout this opin-
ion, however, the facts elicited throughout the state’s
case-in-chief substantially undercut the defendant’s
claim that he shot Mickey Tillery in self-defense.23
As previously stated, ‘‘when a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show, not
only that the remarks were improper, but also that,
considered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of
due process.’’ State v. Payne, 303 Conn. 538, 562–63,
34 A.3d 370 (2012). Considering the strength of the
state’s case, the infrequency with which the improper
comments were made, and the defendant’s failure to
object to any of the comments with which he now
takes issue, we conclude that the defendant has not
demonstrated that, ‘‘in the context of the entire trial’’;
State v. Williams, supra, 204 Conn. 538; the prosecutor’s
improper comments ‘‘rendered the defendant’s [trial]
fundamentally unfair, in violation of his right to due
process.’’ (Internal quotation marks omitted.) State v.
Warholic, supra, 278 Conn. 396; see also State v. Steven-
son, 269 Conn. 563, 571, 849 A.2d 626 (2004).
The judgment is affirmed.
In this opinion the other judges concurred.
1
In view of this court’s policy of protecting the privacy interests of juve-
niles, we refer to the child involved in this matter as J. See, e.g., Frank v.
Dept. of Children & Families, 312 Conn. 393, 396 n.1, 94 A.3d 588 (2014).
2
At trial, Gainey claimed that she intended to call her mother because
she was too drunk to care for J. Tillery and the victim, her brother, Mickey
Tillery, however, stated that Gainey called her mother that evening because
the defendant had struck her in front of J.
3
Marjorie Tillery also testified that she wanted her brother to accompany
her ‘‘in case [the defendant] wanted to disrespect me in a sense . . . [to
make] sure everything would be all right once [we] got there.’’
4
At trial, Gainey testified inconsistently regarding the plan to meet at
Lombard Street that evening. Gainey first testified that, after she had called
her mother, she traveled to Lombard Street and waited with J on the front
porch of a friend’s house before returning to Peck Street. Upon further
questioning, Gainey testified that she never made it to her friend’s house,
but instead had walked approximately halfway to Lombard Street before
she returned to Peck Street. Thereafter, she stated that she had gone to her
neighbor’s home following her argument with the defendant, and was inside
that neighbor’s home when her mother arrived at Peck Street.
5
Although Marjorie Tillery testified that she first traveled to Lombard
Street before heading to Peck Street, Mickey Tillery testified that they trav-
eled directly from West Haven to Peck Street, New Haven.
6
At trial, Marjorie Tillery testified that she ‘‘just wanted to talk to [the
defendant] and ask him, you know, why [the defendant continued] to keep
on doing what he [was] doing to my daughter knowing my granddaughter,
which is his daughter, is there to see all that.’’
7
As we will discuss more fully, the parties agree that the record does not
clearly establish the chronology of Trotman’s traffic stop or his questioning
of the defendant. Notably, there is no indication of whether the defendant
was arrested prior to or after answering Trotman’s questions or when, if at
all, the defendant received his warnings pursuant to Miranda v. Arizona, 384
U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), during this encounter.
8
On the second day of trial, Jill Therriault, a firearms and toolmark exam-
iner with the state Department of Emergency Services and Public Protec-
tion’s division of scientific services, testified that forensic testing confirmed
that the shell casing discovered at Peck Street was fired from the nine
millimeter handgun later recovered in the defendant’s possession.
9
During the state’s direct examination of Bryce, the following colloquy
occurred:
‘‘Q. Finally, sir, as part of your duties or responsibilities in this case, did
you have occasion to do a background check for the defendant, Mr. Jermaine
Reddick . . . to determine whether or not he had been previously convicted
of a felony? Did you do such a check? . . .
‘‘A. Yes.
‘‘Q. All right. And after doing that check, did you confirm that Mr. Reddick,
in fact, had been previously convicted of a felony before that date?
‘‘A. Yes.’’
The defendant did not object to this line of questioning or request a limiting
instruction as to the permissible use of such prior conviction evidence.
10
The defendant also claims that the prosecutor’s comments violated
General Statutes § 54-84 (a), which provides in relevant part: ‘‘Any person
on trial for crime shall be a competent witness, and at his or her option
may testify or refuse to testify upon such trial. The neglect or refusal of an
accused party to testify shall not be commented upon by the court or
prosecuting official . . . .’’
A review of the record, however, demonstrates that the prosecutor never
commented on the defendant’s decision not to testify during trial. We thus
reject this alternative argument.
11
It is well settled that a defendant may raise a claim of prosecutorial
impropriety on appeal even though he failed to object to the alleged impropri-
ety at trial. See, e.g., State v. Stevenson, 269 Conn. 563, 573–74, 849 A.2d
626 (2004).
12
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
13
At several points during the trial, the defendant claimed that Mickey
Tillery was six feet tall and weighed 240 pounds. On direct examination of
Dirk Johnson, a physician at Yale-New Haven Hospital, the state entered
into evidence exhibit 25, a medical report dated May 7, 2013, which listed
Mickey Tillery’s height at five feet, eleven inches and his weight at 219
pounds. On cross-examination, Gainey agreed with defense counsel that
the defendant was approximately five feet, six inches tall and weighed
170 pounds.
14
During the state’s direct examination of Trotman, the following collo-
quy occurred:
‘‘Q. Okay. Now . . . after you stopped the vehicle . . . did you ask Mr.
Reddick any questions, sir?
‘‘A. Yes, I asked him where he was coming from.
‘‘Q. Okay. And do you remember what, if anything, he told you about that?
‘‘A. Yes, he said he was coming from 38 Peck.
‘‘Q. Okay. Now, after you discovered the handgun . . . did Mr. Reddick
indicate who that gun belonged to?
‘‘A. Yes, he said it was his.
‘‘Q. And concerning Mr. Whitely’s involvement in this incident, what did
he say, if anything, about Mr. Whitely?
‘‘A. He said Mr. Whitely was just giving him a ride and that the gun
belonged to him.
‘‘Q. So, at this point, were both Mr. Whitely and Mr. Reddick . . . were
they both detained and placed under arrest, sir?
‘‘A. Yes.’’
15
On cross-examination of Trotman, the following colloquy occurred:
‘‘Q. When you spoke to Mr. Reddick, you asked him where he was coming
from. Correct?
‘‘A. Yes.
‘‘Q. And he told you 38 Peck Street.
‘‘A. Yes.
‘‘Q. And that’s, in fact, where he was coming from. Correct?
‘‘A. Yes.
‘‘Q. And . . . did you ask him whose gun is that?
‘‘A. I don’t recall . . . I think it was more . . . that he didn’t want the
driver to get in trouble for what he did. I don’t recall how it came about,
but he did say that . . . it was his gun.
‘‘Q. And were you the one that stopped him?
‘‘A. Yes.
‘‘Q. All right. . . . [Did] you have your weapon drawn when you . . .
stopped him?
‘‘A. Yes.
‘‘Q. All right.
‘‘A. Yes.
‘‘Q. Did you ask him if he had any weapons in the car?
‘‘A. Yes.
‘‘Q. And did he say yes?
‘‘A. I don’t recall.
‘‘Q. Okay. At some point he said yes. Correct?
‘‘A. Yes.
‘‘Q. He . . . indicated . . . that it was his weapon.
‘‘A. Yes.
‘‘Q. All right. And do you know the person who was shot in this case?
Do you know his name? . . .
‘‘A. No, it’s not in my notes. I had nothing to do with that part of the investi-
gation.
‘‘Q. Okay. So, all you did was stop him, arrest him, and bring him to . . .
Union Station. Correct?
‘‘A. No, I . . . stopped and I waited until the primary officer that was at
the scene of the crime—until he came and then he did what he had to do. . . .
‘‘Q. And then . . . you left.
‘‘A. Yes.
‘‘Q. Went on with other things.
‘‘A. Yup.’’
16
Although the defendant’s argument suggested that he did not recognize
Mickey Tillery, both Tillerys testified that the two men had met each other
prior to April 29, 2013.
17
Although ‘‘[e]vidence of a defendant’s postarrest silence is inadmissible
under the principles of the law of evidence . . . a defendant must season-
ably object and take exception to an adverse ruling in order to obtain
appellate review of his claim of error in this respect.’’ (Internal quotation
marks omitted.) State v. Lee-Riveras, supra, 130 Conn. App. 613 n.7. As the
state correctly notes, the defendant has not raised an evidentiary claim
regarding the state’s use of the defendant’s postarrest silence.
18
See part II B of this opinion.
19
As we have discussed, the state also called Officer Bryce during its
case-in-chief. During his examination, Bryce testified that, while interviewing
Gainey that evening, he became interested in locating the defendant in
connection with her bruises. Bryce also stated that Gainey never mentioned
that she had fallen down the stairs.
20
Pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert.
denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), the court
admitted only those portions of the taped interview that concerned the
cause of Gainey’s injuries on the evening of the shooting.
21
Pursuant to General Statutes § 53a-217 (a): ‘‘A person is guilty of criminal
possession of a firearm . . . or . . . electronic defense weapon when such
person possesses a firearm . . . or . . . electronic defense weapon and
. . . has been convicted of a felony . . . .’’
We note that although § 53a-217 has been amended since the events at
issue here, those amendments are not relevant to this appeal. We therefore
refer to the current revision of § 53a-217.
22
During closing argument, defense counsel argued, ‘‘[the prosecutor] may
be right. You may feel the same way. You’re sick of the gun violence . . .
in New Haven. This case is not a referendum on gun violence. It’s not. This
case is about Mr. Reddick defending himself against someone who was
going to cause him serious physical injury.’’ We are cognizant, however,
that these comments occurred after, and in response to, the prosecutor’s
comments in closing argument.
23
Such facts included, inter alia, the lapse of time between the initial
confrontation and the second confrontation between the defendant and
Mickey Tillery; Whitely’s ability to drive the station wagon around Marjorie
Tillery’s truck and exit the parking lot; the fact that Mickey Tillery was
unarmed; and the fact that Mickey Tillery was backing away from the vehicle
with his hands raised when the defendant voluntarily emerged from the
station wagon and shot him.