State v. Maner

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STATE OF CONNECTICUT v. TAMARIUS MANER
(AC 35109)
DiPentima, C. J., and Keller and Mihalakos, Js.
Argued September 23, 2013—officially released January 28, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Prescott, J.)
Auden Grogins, assigned counsel, for the appellant
(defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Maureen Platt,
state’s attorney, and John J. Davenport, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Tamarius Maner,
appeals from the judgment of conviction, rendered after
a jury trial, of felony murder in violation of General
Statutes § 53a-54c, home invasion in violation of Gen-
eral Statutes § 53a-100aa (a) (1), burglary in the first
degree in violation of General Statutes § 53a-101 (a)
(3), and attempt to commit assault in the first degree
in violation of General Statutes §§ 53a-49 (a) (2) and
53a-59 (a) (5). On appeal, the defendant claims that
(1) the trial court improperly admitted into evidence a
firearm and testimony related to that firearm, (2) the
court improperly admitted into evidence the testimony
and written statement of a witness, and (3) he was
deprived of the right to a fair trial as a result of prosecu-
torial impropriety. We are not persuaded by the defen-
dant’s claims on appeal and affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. On October 26, 2008, Maria Guadalupe Orzuna-
Sanchez, who was dating the defendant, encountered
Joseph Samaba on a street corner in Waterbury. Orzuna-
Sanchez, Samaba, the defendant, and another individual
went to the apartment of the victim, James Caffrey.
Orzuna-Sanchez and Samaba smoked marijuana while
the defendant spoke with the victim about purchasing
marijuana from him. The victim retrieved some mari-
juana from his bedroom and sold the defendant seven
grams. Later in the evening, the defendant announced
that he had to leave in order to take a train to return
home to Bridgeport.
The victim lived with his girlfriend, Samantha Bright,
and a roommate, Ray Ramos, in a second floor apart-
ment. The victim’s mother lived in the first floor apart-
ment beneath the victim. At some point, the victim and
Bright went to sleep. Bright heard the doorbell ring
about 1:15 in the morning, and the victim went to the
door, turning on lights in the living room, kitchen and
hallway. Bright heard a brief conversation, followed by
a single gunshot. Before she could get out of the bed,
the defendant, wearing a khaki sweatshirt, and Calvin
Bennett,1 wearing a gray sweatshirt, appeared in the
doorway, and both were holding small black guns. Ben-
nett approached Bright, placed his gun to the back of
her head and asked where the money and marijuana
was. She indicated that it was in the top dresser drawer.
As the defendant opened the drawer, the victim’s
mother, Emilia Caffrey, who had come upstairs and
into the second floor apartment, began screaming. Caf-
frey saw her son face down on the floor and ‘‘full of
blood.’’ The defendant and Bennett exited the bedroom
and the defendant shot at Caffrey, who fell to the floor.
Francis Brevetti, a Waterbury police officer, received
a call from the police dispatch of possible gunshots
fired at the victim’s apartment. After he arrived at the
scene, Brevetti turned the victim over and observed a
bullet wound in the victim’s head and a spent .45 caliber
casing. Brevetti provided medical aid to the victim until
paramedics arrived. The victim later died, and it was
determined that the cause of death was a gunshot
wound to the head.2
After an investigation, the police arrested the defen-
dant. Following a trial, the jury found the defendant
guilty of felony murder, home invasion, burglary in the
first degree and attempt to commit assault in the first
degree. The jury failed to reach a verdict with respect
to a charge of murder, which the court subsequently
dismissed. The court sentenced the defendant to sev-
enty years incarceration. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
admitted into evidence a firearm and testimony related
to that firearm. Specifically, he argues that the court
abused its discretion in admitting that evidence and
that such error was harmful. We conclude that the court
improperly admitted the firearm into evidence, but that
the defendant has failed to sustain his burden of estab-
lishing harmful error.
The following additional facts and procedural history
are relevant to our discussion. On December 29, 2009,
the defendant filed a motion in limine to preclude the
state from entering the firearm into evidence, arguing
that any probative value was ‘‘far outweighed’’ by its
prejudicial effect.3 On January 4, 2011, just prior to
the start of the trial, the court heard argument on the
defendant’s motion. The court confirmed with defense
counsel that this firearm had been seized pursuant to a
search warrant from Bennett’s apartment and contained
Bennett’s DNA on it. The court understood that the
state’s purpose of using the firearm as evidence was to
corroborate eyewitness testimony that both individuals
who entered the victim’s apartment at the time of the
shooting were armed and that this firearm, seized from
Bennett’s apartment, was not the same weapon used
to kill the victim and shoot at Caffrey. Defense counsel
acknowledged the probative value of the firearm, con-
ceded that it was relevant, but argued that this particu-
lar firearm could not be connected to the defendant.
He stated the issue as follows: ‘‘How closely or how
definite can we say that the gun . . . was the actual
gun that was in the apartment? It was not seized off
[Bennett’s] person. It was seized in [Bennett’s] apart-
ment in a suitcase with shells that other people have
access to.’’4 Counsel also claimed that the admission
of the actual firearm under these circumstances was
unduly prejudicial. The court denied the motion in
limine.
During her testimony at the defendant’s trial, Bright
described the weapons held by the defendant and Ben-
nett as ‘‘handguns, little black guns.’’ She also admitted
that she was not familiar with guns in any way and that
she did not know the difference between a pistol and
a revolver. At this point, the prosecutor showed her the
firearm that had been seized from Bennett’s apartment,
and Bright said that she had seen a ‘‘gun like that’’ when
the victim had been killed. She could not, however,
describe the weapon shown to her in any other way
except as a small black handgun.
During cross-examination, Bright stated that she
‘‘[didn’t] know anything about guns’’ and that if shown
photographs of eight different guns, she would only be
able to identify the one used by the defendant if it was
one that could be held in your hand, little and black.
Finally, during redirect examination, Bright noted that
if she were shown photographs of eight similar guns,
she would not be able to tell one from the other if they
looked alike, but that Bennett had held a gun to her
head and that the one used by the defendant was similar
to the one that she had been shown in court.
Joseph Rainone, a Waterbury police officer and fire-
arm toolmark examiner, testified that he examined the
firearm seized from Bennett’s apartment.5 He deter-
mined that the two casings found in the victim’s apart-
ment were fired from the same gun. He also concluded
that those casings did not come from the firearm seized
from Bennett’s apartment. Christine Roy, a forensic
science examiner, testified that Bennett’s DNA could
not be eliminated as a contributor to the DNA recovered
from the handle area, muzzle area and slide area of the
firearm seized from his apartment. Roy also noted that
the defendant was eliminated as a contributor to the
DNA samples recovered from this firearm.
On appeal, the defendant argues that the evidence
relating to this firearm had a minimal nexus to him and
to the offenses charged, and was not relevant because
the firearm was immaterial to the proceedings. He fur-
ther contends that this error was harmful. The state
counters that a sufficient nexus existed, the firearm
was relevant, and that even if the firearm was admitted
into evidence improperly, such error was harmless.
A
Our first task is to determine whether the court
abused its discretion in admitting the firearm found
in Bennett’s apartment into evidence. We begin our
analysis by setting forth our standard of review. ‘‘Our
analysis of the [defendant’s] . . . [claim] is based on
well established principles of law. The trial court’s rul-
ing on the admissibility of evidence is entitled to great
deference . . . [and] will be overturned only upon a
showing of a clear abuse of the court’s discretion. . . .
Despite this deferential standard, the trial court’s dis-
cretion is not absolute. . . . Thus, [i]n reviewing a
claim of abuse of discretion, we have stated that [d]is-
cretion means a legal discretion, to be exercised in
conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice. . . . In general, abuse of discretion
exists when a court could have chosen different alterna-
tives but has decided the matter so arbitrarily as to
vitiate logic, or has decided it based on improper or
irrelevant factors.’’ (Citation omitted; internal quotation
marks omitted.) State v. Zillo, 124 Conn. App. 690, 695,
5 A.3d 996 (2010); see also State v. Jacobson, 283 Conn.
618, 626–27, 930 A.2d 628 (2007); State v. Lewis, 146
Conn. App. 589, 601, 79 A.3d 102 (2013).
We set forth the applicable legal principles regarding
relevancy and materiality. ‘‘Section 4-1 of the Connecti-
cut Code of Evidence provides: Relevant evidence
means evidence having any tendency to make the exis-
tence of any fact that is material to the determination
of the proceeding more probable or less probable than
it would be without the evidence. As it is used in our
code, relevance encompasses two distinct concepts,
namely, probative value and materiality. . . . Concep-
tually, relevance addresses whether the evidence makes
the existence of a fact material to the determination of
the proceeding more probable or less probable than it
would be without the evidence. . . . In contrast, mate-
riality turns upon what is at issue in the case, which
generally will be determined by the pleadings and the
applicable substantive law. . . . If evidence is relevant
and material, then it may be admissible.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) State v. Zillo, supra, 124 Conn. App. 696–97;
see also State v. Izzo, 82 Conn. App. 285, 291–92, 843
A.2d 661, cert. denied, 270 Conn. 902, 853 A.2d 521(2004); C. Tait & E. Prescott, Connecticut Evidence (4th
Ed. 2008) §§ 4.1.2 and 4.1.3, pp. 135–36.
Here, the determinative question is whether the fire-
arm, found in Bennett’s apartment without the DNA of
the defendant on it and determined not to be the firearm
discharged in the victim’s apartment, was material in
the defendant’s trial. A review of the pertinent case law
facilitates our discussion. In State v. Mozell, 36 Conn.
App. 672, 673, 652 A.2d 1060 (1995), New Haven police
officers suspected the defendant and others of being
part of a drug ring, and conducted surveillance as part
of the investigation. They obtained search warrants for
the residences of Millicent Parker and Nicole Lowery.
Id., 673–74. At Parker’s home, police found various
items used in the packaging of drugs and a large quantity
of cocaine. Id., 674. At Lowery’s apartment, a .38 caliber
handgun was found. Id. The defendant was charged with
conspiracy to sell narcotics and possession of narcotics
with intent to sell. Id., 673. At his trial, a charged cocon-
spirator testified that Ernest Williams, the suspected
leader of the drug ring, had been carrying the gun. Id.,
674. Lowery testified that Williams had brought the gun
to her apartment and that the defendant had accompa-
nied him. Id. On appeal, the defendant argued that
‘‘because there was no evidence tying the seized gun to
the alleged conspiracy, the gun and Lowery’s testimony
concerning the gun were improperly admitted into evi-
dence.’’ Id., 675. We noted that ‘‘the defendant was never
alleged or shown to be in possession of the gun. Nor
was the gun alleged or shown to be involved in any of
the activities observed by the surveillance team. . . .
There was no connection between the gun and the
offense charged in this case; nor was there any connec-
tion between the gun and the defendant. It is error to
allow into evidence [articles or] testimony concerning
articles seized . . . that tend to indicate criminal pro-
pensity when those articles are not connected to the
commission of the crime charged.’’ (Internal quotation
marks omitted.) Id., 677. Under those facts and circum-
stances, we concluded that the trial court had abused
its discretion in admitting into evidence the gun and
the testimony regarding the gun. Id.
In State v. Coleman, 35 Conn. App. 279, 281, 646 A.2d
213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994),
the victim was sleeping in her bed when an assailant
entered her room and placed a knife at her throat. A
struggle ensued and the victim suffered several lacera-
tions and blows to her face. Id. The victim escaped and
the police were called. Id. The police seized three knives
from the defendant’s car approximately two weeks after
the attack; id., 282; and he was convicted of burglary
in the first degree, assault in the first degree and attempt
to commit robbery in the first degree. Id., 280. On
appeal, the defendant argued that the state had failed
to ‘‘establish a nexus between [the knives seized from
his car] and the crimes with which [he] was charged.’’
Id., 284. We stated: ‘‘There is nothing in the record to
suggest that the knives found in the defendant’s car
had any connection to the crimes committed against
the victim. Although the victim testified that she was
awakened in her apartment by an assailant who was
holding a knife against her throat and that during a
struggle with him her right hand was slashed by the
blade of the knife, the state never connected the fact
of the defendant’s possession of three knives with the
commission of the crimes for which he stood charged.
The knives were discovered in the defendant’s car more
than two weeks after the victim was assaulted, the
victim never described the knives used by her assailant,
and the state never argued that one of the defendant’s
knives was used in the assault against the victim.’’
Id., 285–86.
The state, citing several cases, argued that the fact
that none of the knives was identified positively as the
one used in the crime went to the weight of the evidence
and not to its admissibility. In rejecting this argument,
we noted that in each of the cases cited by the state,
there was some evidence linking the item to the crime
charged.6 Id., 286. We then stated: ‘‘It is error to allow
into evidence testimony concerning articles seized from
the defendant that tend to indicate criminal propensity
when those articles are not connected to the commis-
sion of the crime charged.’’ Id., 287. Because the state
failed to produce evidence connecting the knives found
in the defendant’s car with the assault of the victim,
we concluded that the court abused its discretion in
admitting into evidence the testimony regarding the
seized knives. Id.; see also State v. Girolamo, 197 Conn.
201, 206, 496 A.2d 948 (1985) (state conceded that two
automatic handguns rightfully in defendant’s posses-
sion improperly were admitted into evidence because
they were completely irrelevant to guilt or innocence
of defendant as to pending criminal charges).
In the present case, the state’s theory was that the
defendant, not Bennett, shot and killed the victim and
shot at Caffrey. The state presented the firearm recov-
ered from Bennett’s apartment, which contained Ben-
nett’s DNA, but not the defendant’s. Forensic testing
established that this firearm was not discharged in the
victim’s apartment. Finally, at the defendant’s trial,
Bright was unable to identify the firearm as anything
more than a small black gun. Her testimony regarding
the firearm, general and nonspecific in nature, could
not link the firearm seized from Bennett’s apartment
to crimes charged by the state against the defendant.
Absent any connection between the firearm and the
crimes charged, the court improperly admitted it into
evidence because the state failed to establish its materi-
ality. See State v. Mozell, supra, 36 Conn. App. 677; see
also State v. Johnson, 160 Conn. 28, 30–33, 273 A.2d
702 (1970) (state failed to connect dynamite seized from
defendants with dynamite stolen from construction
site); State v. Coleman, supra, 35 Conn. App. 285–87.
B
We now turn to the question of whether the improper
admission of the firearm into evidence amounted to
harmful error. See State v. Michael A., 99 Conn. App.
251, 270, 913 A.2d 1081 (2007) (Appellate Court’s inquiry
does not end with conclusion of improper evidentiary
ruling). We begin by setting forth the relevant legal
principles. ‘‘[T]he appellate harmless error doctrine is
rooted in [the] fundamental purpose of our criminal
justice system—to convict the guilty and acquit the
innocent. The harmless error doctrine recognizes the
principle that the central purpose of a criminal trial is
to decide the factual question of the defendant’s guilt
or innocence . . . and promotes public respect for the
criminal process by focusing on the underlying fairness
of the trial rather than on the virtually inevitable pres-
ence of immaterial error.’’ (Citation omitted; internal
quotation marks omitted.) State v. Sawyer, 279 Conn.
331, 354–55, 904 A.2d 101 (2006), overruled in part on
other grounds by State v. DeJesus, 288 Conn. 418,
454–55 n.23, 953 A.2d 45 (2008) (en banc); see also State
v. Mitchell, 296 Conn. 449, 459–60, 996 A.2d 251 (2010).
When an improper evidentiary ruling is nonconstitu-
tional in nature, it is the defendant’s burden to demon-
strate that such an error was harmful. State v. Franko,
142 Conn. App. 451, 460, 64 A.3d 807, cert. denied, 310
Conn. 901, 75 A.3d 30 (2013); State v. Outlaw, 108 Conn.
App. 772, 785, 949 A.2d 544, cert. denied, 289 Conn. 915,
957 A.2d 880 (2008); see also State v. Jacobson, supra,283 Conn. 641.
In State v. Sawyer, supra, 279 Conn. 331, our Supreme
Court clarified the standard for establishing harm in
cases involving improper evidentiary rulings that are
nonconstitutional in nature. After reviewing federal and
sibling state authority, the court instructed that ‘‘the
proper standard for determining whether an erroneous
evidentiary ruling is harmless should be whether the
jury’s verdict was substantially swayed by the error.
This is consistent with the outcome determinative
approach followed by the overwhelming majority of
state and federal courts because it expressly requires
the reviewing court to consider the effect of the errone-
ous ruling on the jury’s decision. . . . We also adopt
the standard expressed in Kotteakos [v. United States,
328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946)] and
followed by the [United States Court of Appeals for
the] Second Circuit, namely, fair assurance . . . as the
appropriate level of confidence for assessing whether
the erroneous ruling substantially affected the verdict.
Accordingly, we conclude that a nonconstitutional error
is harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict.’’
(Citations omitted; internal quotation marks omitted.)
State v. Sawyer, supra, 357.
In order to determine whether the defendant in Saw-
yer satisfied his burden of establishing harmful error,
the court set forth a number of factors, ‘‘such as the
importance of the witness’ testimony in the prosecu-
tion’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or con-
tradicting the testimony of the witness on material
points, the extent of cross-examination otherwise per-
mitted, and, of course, the overall strength of the prose-
cution’s case. . . . Most importantly, we must examine
the impact of the [improperly admitted] evidence on
the trier of fact and the result of the trial.’’ (Internal
quotation marks omitted.) Id., 358; see also State v.
Jacobson, supra, 283 Conn. 641–42; State v. Ritrovato,
280 Conn. 36, 56–57, 905 A.2d 1079 (2006); State v.
Outlaw, supra, 108 Conn. App. 785–86; State v. Michael
A., supra, 99 Conn. App. 270–71.
In the present case, Bright testified that when the
victim went to see who was at the door at approximately
1:15 a.m., he turned on lights in their apartment as
he walked from the bedroom. She overheard a brief
conversation, and then a gunshot. She testified that
two men, each holding a small black gun, entered the
bedroom. A few days later, she recognized the defen-
dant in a photographic array as the man wearing the
tan sweatshirt who looked in the dresser for money and
marijuana. She also identified the defendant in court.
Caffrey, both in a photographic array a few days after
the homicide and in court during the defendant’s trial,
identified the defendant as the individual wearing a tan
sweatshirt who had shot at her in the victim’s apart-
ment. The jury heard testimony that the defendant had
been in the victim’s apartment and purchased marijuana
from the victim the day before the shooting.7 As a result
of this transaction, he knew that the victim kept his
supply of marijuana in the bedroom. The state read to
the jury the defendant’s statement to the police that he
was in Bridgeport on the night when the victim was
killed. This statement was contradicted, however, by
evidence from cell phone towers that the defendant
traveled from Bridgeport to Waterbury, was in Water-
bury at the time of the shooting, and then went back
to Bridgeport.8 The jury heard from Earl Cornish, a
jailhouse informant, who testified that the defendant
previously had admitted to participating in the shooting
of the victim.9 Finally, the jury heard Latisha Caban’s
statement to the police, admitted 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).
Caban stated that the defendant had told her that he
was going to Waterbury to ‘‘take some weed.’’ She fur-
ther stated that he returned to Bridgeport at approxi-
mately 2 a.m., and he told her that ‘‘it wasn’t good,
nothing happened and not to ask any questions.’’
On the basis of the weight of the evidence in this case,
we cannot conclude that the verdict was substantially
swayed by the improper admission of the firearm into
evidence. In the present case, there were two eyewit-
nesses to the defendant’s participation in the criminal
activity in the victim’s apartment. Additionally, the jury
heard the testimony from a jailhouse informant who
relayed inculpatory statements made by the defendant
in which he admitted to robbing and shooting the victim.
See State v. Bonner, 290 Conn. 468, 501, 964 A.2d 73(2008) (overwhelming weight of evidence where two
eyewitnesses saw defendant point gun at victim’s car
at time of shooting and state presented testimony of
jailhouse informant that defendant confessed to fatally
shooting victim); State v. Rosario, 99 Conn. App. 92,
115–16, 912 A.2d 1064 (state’s case was strong when it
presented three eyewitnesses who testified unequivo-
cally that defendant was shooter), cert. denied, 281
Conn. 925, 918 A.2d 276 (2007); State v. Thomas, 98
Conn. App. 384, 388, 909 A.2d 57 (2006) (Appellate Court
possessed fair assurance that any error did not substan-
tially affect verdict in light of ample evidence of defen-
dant’s guilt, including testimony from jailhouse
informant), cert. denied, 281 Conn. 906, 916 A.2d 47(2007); cf. State v. Arroyo, 284 Conn. 597, 614, 935
A.2d 975 (2007) (state’s case was weak where primary
evidence was testimony and out-of-court statement
from five year old victim to third parties and equivocal
medical evidence); State v. Ritrovato, supra, 280 Conn.
57 (sexual assault case lacking physical evidence, was
weak especially when victim is minor).
After reviewing the relevant case law and the evi-
dence in the present case, we conclude that the defen-
dant has failed to sustain his burden of establishing
harmful error.10 More specifically, given the other evi-
dence in the case, we have a fair assurance that the
admission of the firearm, although improper, did not
substantially affect the verdict.
II
The defendant next claims that the court improperly
admitted into evidence the testimony and the written
statement of Bessie Pettway, who was the girlfriend
of Bennett. Specifically, the defendant argues that the
court should not have admitted her testimony and prior
written statement to the police, pursuant to State v.
Whelan, supra, 200 Conn. 753, regarding the firearm
seized from Bennett’s apartment and certain drug evi-
dence. The defendant contends that his claim is com-
prised of both evidentiary and constitutional
components. The state counters, inter alia, that any
error was harmless. We agree with the state that any
error was harmless beyond a reasonable doubt.
The following facts and procedural history are neces-
sary for our analysis. Outside of the presence of the
jury, the defendant objected to Pettway’s testimony.
Defense counsel stated to the court: ‘‘It is kind of an
extension on the matter of the [firearm]. This was a
matter that, basically, evidence she’s going to testify to
refers to . . . Bennett [and] not [the defendant]. Since
we do not represent . . . Bennett, I have really no real
basis for cross-examining her on what issues that she’s
going to testify to as far as [the defendant].’’ The court
inquired: ‘‘So, your objection is that this relates to the
gun evidence, primarily,’’ and counsel responded:
‘‘Relates to the gun evidence, but I think [the state] is
going to get into other areas also. . . . Concern is,
again, it’s cumulative because of the gun.’’ Defense
counsel noted that Pettway’s testimony was cumulative,
and then agreed with the court that one issue was that
while the firearm was found in Bennett’s apartment,
other people in that apartment had access to it. Counsel
also raised a claim that while Pettway’s statement to
the police indicated that she had seen Bennett with the
firearm, at Bennett’s criminal trial she testified that it
belonged to someone else. Counsel then explained his
objection as follows: ‘‘I can cross-examine her about
that statement, but there are also other questions that
[the prosecutor] intends to elicit regarding timing, when
[Bennett] came home and things like that. I don’t have
information that’s privy to . . . Bennett to cross-exam-
ine her on. Could [Bennett] have been doing this, doing
that? I’m kind of here with my hands tied to some
extent, not knowing anything, any of the details about
. . . Bennett. I never talked to the man, and we don’t
have access to him because he’s represented by
counsel.’’
At the outset of her testimony before the jury, Pettway
indicated that she was ‘‘not happy’’ to be there, was
incarcerated and faced felony charges. She stated that
in October, 2008, she knew the defendant, and was in
a relationship and lived with Bennett. Police searched
their house and found the firearm. She testified that
Bennett did not have ‘‘a gun like that’’ and that it
belonged to her stepfather, Curtis Stevens. Pettway did
not recall giving a statement to the Waterbury police
that Bennett had a black gun, that she had seen Bennett
with the firearm two months before, and that the only
male clothes in the apartment belonged to Bennett.
She testified that she had told the police that Bennett
returned home after 2 a.m. on the day of the shooting
and ‘‘that he was acting kind of nervous.’’ She denied
telling the police that Bennett sold crack and that they
never sold marijuana.
At the conclusion of Pettway’s testimony, the state
indicated that it would attempt to introduce her prior
written statement to the police for substantive purposes
pursuant to State v. Whelan, supra, 200 Conn. 753. The
state recalled Milford Hayes, a police detective, who
had interviewed Pettway during the course of the inves-
tigation of the shooting of the victim. He stated that
after speaking with Pettway, her statement was typed,
printed and given to her to read and sign. Defense coun-
sel then renewed his objection, and the court then
admitted Pettway’s statement to the police, which was
read to the jury: ‘‘I mean me and [Bennett] sell crack,
we never sell weed. [Shortly after the shooting, Bennett]
kept telling me to mind my business. Detective Hayes
then asked me if I ever seen [Bennett] with a gun, and
I said yes [Bennett] has a black gun that looks a little
like [Hayes’] but is smaller. I told . . . Hayes that [Ben-
nett] let me hold the gun in my hand before. . . . Hayes
asked me if I had any other males clothes in my apart-
ment, no, only [Bennett’s] stuff at this time.’’ (Internal
quotation marks omitted.)
On appeal, the defendant argues that Pettway’s testi-
mony regarding the presence of the firearm in Bennett’s
apartment was cumulative and unnecessary, Pettway’s
statement to the police admitted pursuant to State v.
Whelan, supra, 200 Conn. 753, contained irrelevant fire-
arm and drug evidence that was not connected to the
defendant, and the admission of Pettway’s testimony
and statement to the police violated his sixth amend-
ment right to confrontation.11 Even if we assume, with-
out deciding, that the court’s admission of Pettway’s
testimony and statement to the police was an abuse of
discretion and violated the defendant’s sixth amend-
ment right, we conclude that any error was harmless
beyond a reasonable doubt. See State v. William L.,
126 Conn. App. 472, 480, 11 A.3d 1132, cert. denied, 300
Conn. 926, 15 A.3d 628 (2011).
‘‘Whether a constitutional violation is harmless in a
particular case depends upon the totality of the evi-
dence presented at trial. . . . If the evidence may have
had a tendency to influence the judgment of the jury,
it cannot be considered harmless. . . . Whether such
error is harmless in a particular case depends upon a
number of factors, such as the importance of the wit-
ness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case. . . . Most
importantly, we must examine the impact of the evi-
dence on the trier of fact and the result of the trial.’’
(Internal quotation marks omitted.) State v. Santos, 146
Conn. App. 537, 545, 78 A.3d 230 (2013); see also State
v. Devalda, 306 Conn. 494, 506, 50 A.3d 882 (2012) (test
for determining whether constitutional impropriety is
harmless is whether it appears beyond reasonable
doubt that impropriety did not contribute to verdict
obtained). The state bears the burden of proving that
the error is harmless beyond a reasonable doubt. State
v. Smith, 289 Conn. 598, 628, 960 A.2d 993 (2008).
Under the factors applied in part I B of this opinion,
we conclude that the state has sustained its burden
of proving that any error relating to the admission of
Pettway’s testimony or statement to the police was
harmless beyond a reasonable doubt. In light of the
other evidence in this case, we conclude that the impact
of Pettway’s testimony and statement to the police was
minimal with respect to the jury and its verdict. Under
the facts and circumstances of this case, those factors
also lead us to the conclusion that the admission of
‘‘collateral firearm and drug evidence’’ in Pettway’s
Whelan statement was harmless beyond a reasonable
doubt. Furthermore, ‘‘because constitutional error
claims are subjected to a stricter harmless error stan-
dard than nonconstitutional evidentiary claims, our
conclusion that the trial court’s preclusion of the cross-
examination, if improper, was nevertheless harmless
necessarily compels us to conclude that it was likewise
harmless under a nonconstitutional evidentiary analy-
sis.’’ State v. Wilson, 308 Conn. 412, 422, 64 A.3d 91(2013). Accordingly, we conclude that the defendant’s
evidentiary and constitutional claims must fail.
III
The defendant’s final claim is that he was denied the
right to a fair trial as a result of prosecutorial impropri-
ety. Specifically, he argues that the prosecutor made
five statements during his closing argument to the jury
that were improper and that these remarks deprived
the defendant of his right to a fair trial. We conclude
that the challenged statements of the prosecutor were
not improper and, therefore, we reject the claim that
the defendant was denied his right to a fair trial.
As a preliminary matter, we set forth the relevant
law on prosecutorial impropriety. The defendant
acknowledges that he did not raise an objection during
or following the prosecutor’s closing argument. It is
well established law, however, that ‘‘a defendant who
fails to preserve claims of prosecutorial misconduct
need not seek to prevail under the specific requirements
of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), and, similarly, it is unnecessary for a reviewing
court to apply the four-pronged Golding test.’’ (Internal
quotation marks omitted.) State v. Payne, 303 Conn.
538, 560, 34 A.3d 370 (2012); see also State v. Stevenson,
269 Conn. 563, 572–75, 849 A.2d 626 (2004); State v.
Adams, 139 Conn. App. 540, 548, 56 A.3d 747 (2012)
(claim of prosecutorial impropriety may be raised on
appeal even if it was not subject of defense objection
at trial), cert. denied, 308 Conn. 928, 64 A.3d 121 (2013).
Our Supreme Court has explained that ‘‘the defendant’s
failure to object at trial to each of the occurrences that
he now raises as instances of prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of
his claims. . . . This does not mean, however, that the
absence of an objection at trial does not play a signifi-
cant role in the determination of whether the challenged
statements were, in fact, improper. . . . To the con-
trary, we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time. . . . With
this maxim in mind, we proceed with our review of the
defendant’s claim[s].’’ (Internal quotation marks omit-
ted.) State v. Medrano, 308 Conn. 604, 612–13, 65 A.3d
503 (2013).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step process. . . . The two steps are
separate and distinct: (1) whether [an impropriety]
occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial. Put differently, [impropriety] is
[impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] [was
harmful and thus] caused or contributed to a due pro-
cess violation is a separate and distinct question . . . .’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) State v. Wilson, supra, 308 Conn. 434;
see also State v. Adams, supra, 139 Conn. 548. We note
that ‘‘[w]hen a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant 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.’’ (Internal
quotation marks omitted.) State v. James, 141 Conn.
App. 124, 140, 60 A.3d 1011, cert. denied, 308 Conn. 932,
64 A.3d 331 (2013).
The improprieties alleged by the defendant occurred
during closing argument. ‘‘As we previously have recog-
nized, prosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . When making closing arguments to the
jury, [however] [c]ounsel must be allowed a generous
latitude in argument, as the limits of legitimate argu-
ment 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 prosecutor 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. . . . Moreover, [i]t
does not follow . . . that every use of rhetorical lan-
guage or device [by the prosecutor] is improper. . . .
The occasional use of rhetorical 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,
supra, 308 Conn. 611–12. Guided by these principles,
we turn to the specific claims of the defendant.
A
The defendant first argues that the prosecutor
improperly vouched for the credibility of Caffrey and
Bright. This statement came during the prosecutor’s
rebuttal remarks to the jury. The prosecutor, after
responding to defense counsel’s remarks on the defen-
dant’s expert witness on eyewitness identification, Ste-
phen Penrod, then stated: ‘‘But Dr. Penrod didn’t come
in here and say . . . Bright [and] Caffrey made a mis-
take. He can’t say that. And most of the time, people
completely get it right. And how do you differentiate?
How do you put that into context? That’s why I’m spend-
ing some time on what I call corroboration. That’s why
you spend time on these details that don’t seem
important to you at the time. . . . That’s what a trial
is. All these pieces of evidence, all these pieces of fact.
They are all pieces to the puzzle. When you get down
to the end of it, yeah, there may be a couple of pieces
in the middle of the sky or the middle of the sea or the
middle of the forest that are missing, but that doesn’t
mean—you got the whole picture. That’s why when the
judge gives instruction, it’s not beyond all doubt, beyond
[a] shadow of a doubt, it’s a reasonable doubt. And the
state submits to you, there is no reasonable probability
that this happened any other way than the way the
evidence came in. That . . . Caffrey in the kitchen got
it right. That when . . . Bright saw those people come
into her room and saw [the defendant] with a gun, the
man in the khaki colored T-shirt, she got it right. When
she heard Bennett’s voice, she got it right. And that
when they come to court and look at him and pointed
at him and said, yes, that’s the man that was in the
kitchen, they got it right. And there is nothing you’ve
heard to tell you that they got it wrong. Dr. Penrod can
talk about a lot of things, but he can’t tell you that. And
if you look at all of the corroboration that’s in this case,
all of the different factors, all the different evidence
before you, there is no possible doubt we have proved
this case beyond a reasonable doubt.’’ (Emphasis
added.)
‘‘[Although a] prosecutor is permitted to comment
[on] the evidence presented at trial and to argue the
inferences that the jurors might draw therefrom, he is
not permitted to vouch personally for the truth or verac-
ity of the state’s witnesses. . . . Such expressions of
personal opinion are a form of unsworn and unchecked
testimony, and are particularly difficult for the jury to
ignore because of the prosecutor’s special position.
. . . This court has held that it is not improper for a
prosecutor to offer an opinion when commenting on
evidence that supports the credibility of a witness. . . .
A prosecutor may contend that testimony is truthful
because it is corroborated by the other evidence in
the case. . . . Furthermore, a prosecutor may properly
comment on the credibility of a witness where the com-
ment reflects reasonable inferences from the evidence
adduced at trial. . . . It is not improper for the prosecu-
tor to comment [on] the evidence presented at trial
and to argue the inferences that the [jury] might draw
therefrom . . . . We must give the jury the credit of
being able to differentiate between argument on the
evidence and attempts to persuade [it] to draw infer-
ences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret
knowledge, on the other hand.’’ (Citations omitted;
internal quotation marks omitted.) State v. Barry A.,
145 Conn. App. 582, 599, 76 A.3d 211, cert. denied, 310
Conn. 936, A.3d (2013); see also State v. Pereira,
72 Conn. App. 107, 126, 806 A.2d 51 (2002) (‘‘This court
has held that it is not improper for a prosecutor to offer
an opinion when commenting on evidence that supports
the credibility of a witness. . . . Furthermore, a prose-
cutor may properly comment on the credibility of a
witness where the comment reflects reasonable infer-
ences from the evidence adduced at trial.’’ [Citations
omitted; internal quotation marks omitted.]), cert.
denied, 262 Conn. 931, 815 A.2d 135 (2003).
During the prosecutor’s argument to the jury and
prior to the two statements challenged by the defen-
dant, the prosecutor reviewed all of the evidence in
support of the state’s theory of the case. The prosecutor
then argued, on the basis of all those combined pieces
of evidence, that the testimony of Bright and Caffrey
was credible, despite the testimony of Penrod. Because
the prosecutor’s argument that Bright and Caffrey ‘‘got
it right’’ was based on and linked to the evidence, we
conclude that it was proper.
B
The defendant also argues that the prosecutor
improperly opined on the credibility of Cornish, the
jailhouse informant. Specifically, the defendant chal-
lenges the following statement as an instance of prose-
cutorial impropriety: ‘‘But it was kind of insightful in
the couple of minutes that . . . Cornish was on the
[witness] stand. This is why I think it was insightful.
He’s already sentenced. He is doing his time. . . . [The]
defendant comes in here, he’s got a little paperwork.
He starts talking about things that [the defendant] wants
to talk about, military time. He wants to know about cell
phone towers. He wants to know about identification
procedure. He’s talking about how can I beat my case?
How do you beat your case? That kind of sounds like
the conversation you had. . . . That particular period,
Cornish, [the defendant], they were there in that place.
They both had cases. They were talking about it. Okay.
What Cornish had to say is corroborative in a general
way of what the facts are in this case. That’s why I
didn’t—it is what it is. He’s a sentenced prisoner. Is
that what the conversation was? You are going to decide
that. You are going to decide if it’s important or how
important. It is just another piece of the puzzle about
another way we’re trying to tell you that it’s more than
just two identifications.’’ (Emphasis added.)
On the basis of the law set forth in part III A of this
opinion, we conclude that the statement that Cornish’s
testimony was ‘‘insightful’’ was linked to the evidence
in the case, and therefore did not amount to improper
vouching by the prosecutor.
C
The defendant next argues that the prosecutor
improperly denigrated the closing argument of defense
counsel. At the conclusion of his argument to the jury,
defense counsel stated: ‘‘There were a lot of people in
Waterbury. [The defendant] knew where [the victim]
kept his drugs, so did [Rufus] Weathersby. I’m not say-
ing . . . Weathersby did it. We never found out any-
thing about him except for one thing. He and another
individual, black individual, at the time of the murder
were driving around Waterbury, supposedly smoking
[marijuana]. They may have been with . . . [Orzuna-
Sanchez] or not been depending on whether you believe
her time frame. She said, picked up by them sometime
around midnight. We continued going around smoking
[marijuana]. Is that ever checked out? No. Because by
that time, they had decided it was [the defendant] and
. . . Bennett because who—why would they be in
Bridgeport—to come from Bridgeport. It has to be.’’
The prosecutor began his rebuttal argument to the
jury by stating: ‘‘Police didn’t concentrate on anybody.
They started talking to the people in the apartment.
They talked to all the people in the apartment. . . .
Detective [George] Tirado told you, we talked to every-
body. Only guy we didn’t know was, who was this black
guy from Bridgeport named T? So, to get up and say
that Rufus Weathersby never got spoken to, you draw
your own conclusions. . . . There’s no evidence that
anybody else, Rufus Weathersby or anybody, did any-
thing in this case. That is just a red herring to have
you chase off into the distance.’’ (Emphasis added.)
The defendant argues that the prosecutor’s red her-
ring comment ‘‘suggested to the jury that the defen-
dant’s lawyer was using smoke and mirrors to divert
their attention away from the real evidence in the
case.’’12 As an initial matter, we note that ‘‘[t]here is
ample room, in the heat of argument, for the prosecutor
to challenge vigorously the arguments made by defense
counsel.’’ (Internal quotation marks omitted.) State v.
Dearing, 133 Conn. App. 332, 352, 34 A.3d 1031, cert.
denied, 304 Conn. 913, 40 A.3d 319 (2012). Furthermore,
‘‘[t]here is a distinction between argument that dispar-
ages the integrity or role of defense counsel and argu-
ment that disparages a theory of defense. . . .
Moreover, not every use of rhetorical language is
improper. . . . A red herring is defined in relevant part
as a diversion intended to distract attention from the
real issue . . . Webster’s Third New International Dic-
tionary.’’ (Citations omitted; internal quotation marks
omitted.) State v. Salamon, 287 Conn. 509, 558–59, 949
A.2d 1092 (2008), overruled in part on other grounds
by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710(2009).
Given the circumstances in which the prosecutor in
this case, responding to the argument of defense coun-
sel that a third party may have been the actual perpetra-
tor of the crimes in this case, used the rhetorical phrase
red herring, we conclude that it was proper. We also
note that the prosecutor, before using that phrase,
pointed to the evidence in the case to contradict defense
counsel’s suggestion to the jury that the police investiga-
tion purposefully excluded other possible suspects. See
State v. Dearing, supra, 133 Conn. App. 353. We con-
clude, therefore, that this statement did not constitute
prosecutorial impropriety.
D
The defendant next argues that the prosecutor inter-
jected facts that were not in evidence during his closing
argument. The prosecutor referred to the testimony of
Caban during his initial argument to the jury. In Caban’s
Whelan statement, she had stated that on the night of
the killing, the defendant left with a ‘‘BB’’ gun, went to
Waterbury, and upon his return, attempted to fix the
BB gun with the defendant and another individual. Then
the prosecutor commented: ‘‘Even four year old kids
minimize their involvement in things. Even four year
old kids know how to do that. . . . Caban did, too. BB
gun, can’t get in trouble. Well, give [the defendant] a
BB gun, that’s the gun they had. Whatever they did with
that gun in Bridgeport hours after that shooting, I
suggest to you it was more about getting rid of the
gun or breaking the gun so it couldn’t be found, couldn’t
be tested, couldn’t be found operable, couldn’t link [the
defendant] to that poor young man in Waterbury lying
dead in his hallway.’’ (Emphasis added.)
The defendant argues that there was no evidence as
to what happened to the firearm used to kill the victim
and, therefore, it was improper for the prosecutor to
suggest that the defendant destroyed or disposed of it.
‘‘A prosecutor may invite the jury to draw reasonable
inferences from the evidence; however, he or she may
not invite sheer speculation unconnected to evidence.
. . . Moreover, when a prosecutor 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. Santiago, 143 Conn. App. 26,
33, 66 A.3d 520 (2013). Nevertheless ‘‘jurors, in deciding
cases, are not expected to lay aside matters of common
knowledge or their own observations and experiences,
but rather, to apply them to the facts as presented
to arrive at an intelligent and correct conclusion. . . .
Therefore, it is entirely proper for counsel to appeal to
a jury’s common sense in closing remarks.’’ (Internal
quotation marks omitted.) State v. Jordan, 132 Conn.
App. 817, 831, 33 A.3d 307, cert. denied, 304 Conn. 909,
39 A.3d 1119 (2012).
It was the state’s theory that the ‘‘BB gun’’ actually
was the firearm used to kill the victim, and that rather
than repairing it, the defendant was attempting to dam-
age the firearm to prevent it from being tested and
connected to the death of the victim. Furthermore, the
state argued that Caban, who had testified that the
defendant was ‘‘like a brother’’ to her, had tried to
minimize his involvement in the actions on the night
of the shooting. We conclude, therefore, that the chal-
lenged argument by the prosecutor was an appeal to
the jury’s common sense and, thus, did not constitute
prosecutorial impropriety.
E
The defendant next argues that the prosecutor
improperly appealed to the jury’s sympathy when refer-
ring to the victim as ‘‘poor young James Caffrey’’ and
the ‘‘poor young man in Waterbury lying dead in his
hallway’’ during initial argument to the jury.13
‘‘[I]t is well established that, [a] prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors. . . . [S]uch appeals should be avoided because
they have the effect of diverting the jury’s attention
from their duty to decide the case on the evidence. . . .
When the prosecutor appeals to emotions, he invites
the jury to decide the case, not according to a rational
appraisal of the evidence, but on the basis of powerful
and irrelevant factors which are likely to skew that
appraisal.’’ (Citation omitted; internal quotation marks
omitted.) State v. Crump, 145 Conn. App. 749, 755, 75
A.3d 758, cert. denied, 310 Conn. 947, A.3d
(2013); see also State v. Bermudez, 274 Conn. 581, 595–
96, 876 A.2d 1162 (2005), aff’d after remand, 95 Conn.
App. 577, 897 A.2d 661 (2006).
The challenged comments in this case do not
approach the level of those in State v. Payne, 260 Conn.
446, 797 A.2d 1088 (2002),14 State v. Santiago, supra,
143 Conn. App. 41,15 State v. Montoya, 110 Conn. App.
97, 107–108, 954 A.2d 193, cert. denied, 289 Conn. 941,
959 A.2d 1008 (2008),16 or State v. Mills, 57 Conn. App.
202, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754
A.2d 163 (2000),17 where this court and our Supreme
Court concluded that the statements at issue were
improper. Additionally, the comments in this case were
based on the evidence; see State v. Peeler, 267 Conn.
611, 641, 841 A.2d 181 (2004) (as state’s advocate, prose-
cutor may argue state’s case forcefully, so long as argu-
ment is fair and based upon facts in evidence and
reasonable inferences to be drawn therefrom); i.e., the
victim was a young adult and his demise was unfortu-
nate under these facts and circumstances. Finally, we
agree with the state that, under the facts and circum-
stances of this case, the two comments at issue were
nothing more than a ‘‘permissible rhetorical flourish.’’
State v. Edward M., 135 Conn. App. 402, 417, 41 A.3d
1165, cert. denied, 305 Conn. 914, 46 A.3d 172 (2012).
For all these reasons, we conclude that the state’s infre-
quent description of the victim in this case did not
constitute prosecutorial impropriety.
The judgment is affirmed.
In this opinion the other judges concurred.
1
A three judge panel unanimously found Bennett guilty of felony murder,
home invasion and burglary in the first degree. State v. Bennett, 307 Conn.
758, 760, 59 A.3d 221 (2013). A majority of the panel found Bennett guilty
of aiding and abetting murder in violation of General Statutes §§ 53a-8 and
53a-54a. Id. On appeal, our Supreme Court concluded that the evidence was
insufficient to support Bennett’s conviction of aiding and abetting murder.
Id., 760–61.
2
Frank Evangelista, an associate medical examiner for the state, testified
that the victim had an entrance gunshot wound in the mid-bridge of his
nose and gunpowder stippling on the skin of his face, which indicated that
the muzzle of the gun was one to three feet from the victim when he was
shot. Evangelista recovered the bullet, which had fractured the bones in
the victim’s face, in the back of the victim’s neck.
3
The defendant’s motion specifically objected to the introduction of the
firearm into evidence, any mention to the jury of the existence of the firearm
and any showing of the firearm for identification during the trial.
4
Defense counsel also agreed with the court’s summary of his argument.
The court stated to defense counsel: ‘‘Your claim about the tenuous ties
between that gun and this crime relates to how probative the evidence is
because, as I understand your point, it is that because they can’t clearly tie
the gun to the apartment, the actual gun used in the commission of a crime
here, that it’s not probative, it’s not helpful to the jury. That’s a probative
value argument.’’
5
During Rainone’s testimony, the court admitted the firearm into evidence
as a full exhibit over the defendant’s continuing objection.
6
‘‘See State v. Marra, 222 Conn. 506, 610 A.2d 1113 (1992) (witnesses
testified that sneaker found in Long Island Sound was identical to one victim
was wearing when he was assaulted by defendant); State v. Jeffrey, 220
Conn. 698, 704, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct.
3041, 120 L. Ed. 2d 909 (1992) (urine stained blouse worn by victim admissible
where victim testified that defendant urinated on her during sexual assault);
State v. Thomas, [205 Conn. 279, 283, 533 A.2d 553 (1987)] (witness testified
that clothesline rope seized from defendant’s basement looked like rope
used in crime charged); State v. Miller, 202 Conn. 463, 482, 522 A.2d 249(1987) (evidence that handcuffs found on victim were same brand as those
shipped to federal correctional institution where defendant had been pre-
viously employed); State v. Villafane, [171 Conn. 644, 675, 372 A.2d 82 (1976)]
(crime charged was committed with handgun and defendant admitted to
possession of handgun one day after shooting) [cert. denied, 429 U.S. 1106,
97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds
by State v. Stepney, 191 Conn. 233, 254, 464 A.2d 758 (1983), cert. denied,
465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984)]; State v. Ortiz, 14
Conn. App. 493, 499–500, 542 A.2d 734 (1988) (witness testified that he was
beaten with stick and stick was found near crime scene); State v. Corbett,
[12 Conn. App. 217, 220, 530 A.2d 208 (1987)] (shotgun shells and pellets
seized from defendant’s bedroom were kind used in crime charged).’’ State
v. Coleman, supra, 35 Conn. App. 286–87.
7
Orzuna-Sanchez testified that at the time the defendant purchased mari-
juana from the victim, he was wearing a tan hooded sweatshirt.
8
Dan Jensen, an employee of Sprint Nextel, reviewed the defendant’s
cellular telephone records and the Nextel telephone records. By analyzing
the specific access control gateways, which are located on cellular towers
and sites, that picked up the calls from the defendant’s cell phone, Jensen
was able to trace the defendant’s movements on the night in question.
9
Specifically, Cornish testified: ‘‘[The defendant] told me that he was
looking for some marijuana. The girl that he was messing with out in Water-
bury said she knew somebody who has some marijuana. They went to the
kid’s house, sold him some marijuana. He asked the kid if he could get
some weight, meaning more, like bigger amounts. The kid said yes. And he
decided he was going to rob him. So, he went back to Bridgeport, where
he’s from, tried to get a gun, ended up getting a gun from somebody he
referred to as his neighbor, at first. Then he told me the kid’s name was
Cal. They went back together and robbed the kid—well, knocked on the
door, shot him—rang the doorbell, shot him in the face and then robbed him.’’
10
In his brief, the defendant primarily relies on State v. Girolamo, supra,
197 Conn. 201, State v. Onofrio, 179 Conn. 23, 425 A.2d 560 (1979), and
State v. Ferraro, 160 Conn. 42, 273 A.2d 694 (1970), for his claim that
admission of the firearm constituted harmful error. In State v. Girolamo,
supra, 202–203, the defendant was convicted of two counts of theft of a
firearm and larceny in the fourth degree by receiving stolen property. The
court improperly admitted two automatic handguns into evidence. Id., 206.
These two automatic handguns were not related to the charges against the
defendant and were seized during the execution of a search warrant for the
defendant’s home. Id., 207. Our Supreme Court determined that it could not
conclude that the evidentiary error was harmless because ‘‘the sight of deadly
weapons . . . tends to overwhelm reason and to associate the accused
with the [crime] without sufficient evidence . . . especially in view of the
irrelevance of the two automatic guns to the charges against the defendant
. . . .’’ (Citation omitted; internal quotation marks omitted.) Id., 208.
In State v. Onofrio, supra, 179 Conn. 25, the defendant was convicted of
manslaughter in the first degree following the death of the victim from
multiple gunshot wounds. During the defendant’s trial, the state introduced
into evidence two photographs of rooms in his home with rifles, a pistol
and a holster. Id., 27. Our Supreme Court concluded that these photographs
were harmful because ‘‘[a]t the very least the jury could have believed that
the defendant was a violent individual.’’ Id., 33.
In State v. Ferraro, supra, 160 Conn. 43, the defendants and another man
violently assaulted the victims in their home while wearing ski masks and
while two of the assailants were holding guns. During the trial, the court
admitted evidence consisting of pistols, ammunition and a ski mask seized
from the apartment of an alibi witness under the conditions that these items
would be connected to the charges against the defendants. Id., 44. The state,
however, failed to meet the condition on which these items were admitted
into evidence because there was nothing in the record to connect the items
with the events underlying the charges against the defendants. Id., 44–45.
In concluding that the admission of this evidence was harmful, our Supreme
Court noted: Here, the jury had before them evidence that the defendants
had been living in an apartment where pistols, ammunition and a ski mask
were found by the police concealed in the ceiling above a closet. At the
very least the jury could have believed that these defendants were violent
individuals.’’ Id., 45–46.
The cases cited by the defendant are factually distinguishable from the
present case. They also predate State v. Sawyer, supra, 279 Conn. 331, and
therefore did not employ the standard and address the specific factors
Sawyer established for determining harmless error. Given the nature of the
crimes in the present case, and the testimony and other evidence presented
by the state, we conclude that the physical presence of the firearm was
harmless error.
11
‘‘The sixth amendment to the constitution of the United States guaran-
tees the right of an accused in a criminal prosecution to be confronted with
the witnesses against him. This right is secured for defendants in state
criminal proceedings.’’ (Internal quotation marks omitted.) State v. Carpen-
ter, 275 Conn. 785, 816, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126
S. Ct. 1578, 164 L. Ed. 2d 309 (2006). ‘‘We have long recognized that a
violation of the defendant’s right to confront witnesses is subject to harmless
error analysis . . . .’’ (Internal quotation marks omitted.) State v. Wilson,
308 Conn. 412, 420, 64 A.3d 91 (2013).
12
In State v. Orellana, 89 Conn. App. 71, 103, 872 A.2d 506, cert. denied,
274 Conn. 910, 876 A.2d 1202 (2005), we concluded that the ‘‘smoke and
mirrors’’ component of the argument by a prosecutor ‘‘was improper because
it implied, to whatever degree, that the defendant’s attorney had not based
his argument on fact or reason, but had intended to mislead the jury by
means of an artfully deceptive argument. The prosecutor implied that the
defendant’s attorney intended to deceive and thereby impugned the integrity
of the defendant’s attorney. For that reason, the argument constituted prose-
cutorial [impropriety].’’ See also State v. Serrano, 91 Conn. App. 227, 237–38,
880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). We note
that the prosecutor in this case did not use the phrase ‘‘smoke and mirrors.’’
13
Specifically, the challenged statements from the prosecutor were made
in the following context of his argument to the jury: ‘‘Sergeant Rainone took
the two casings, said, eject them, marks are similar from the same gun.
Looked at the other markings on the casings, these two shots came from
the same gun. And we know it wasn’t [Bennett’s] gun. Process of elimination.
This is where the inference is. Kept waiting for someone to come in . . .
Bennett’s gun is the gun that fired the shot, that’s the gun that killed poor
young James Caffrey, but all of that evidence was to prove something in
the negative. . . . Bennett’s gun is not the gun that fired the fatal shot. It
was a gun held by the other person. And the other person is [the defendant].
Look at corroboration.’’ (Emphasis added.)
The prosecutor subsequently stated: ‘‘Whatever they did with that gun in
Bridgeport hours after that shooting, I suggest to you it was more about
getting rid of the gun or breaking the gun so it couldn’t be found, couldn’t
be tested, couldn’t be found operable, couldn’t link [the defendant] to that
poor young man in Waterbury lying dead in his hallway.’’ (Emphasis added.)
14
In Payne, the prosecutor argued: ‘‘Ask yourselves, is that what our law
is all about here? Are victims of crime going to have to continually defend
themselves, their family, their friends from the grave? Because we all know
that is impossible. [The victim] doesn’t deserve to be treated like that in
life or in death. His name [besmirched, his family besmirched] mudslinging.
He can’t defend himself. And the defendant, the defendant knows that.
That’s why we heard the stories we did. All his family has left is his picture.
Now on a slab, on a cutting board. Let them have, let them, let his family
come away from this trial with one good thing out of it. They heard a lot
of negative things in this trial, a lot of accusations that have not been proven
against him, his friends, his family. Let them come away with one positive
thing. Let them have a memory of [the victim] that they can go back home
with. Let them come away with a guilty verdict against the person that put a
twenty-five caliber bullet into his body.’’ (Internal quotation marks omitted.)
State v. Payne, supra, 260 Conn. 461–62.
15
In Santiago, the prosecutor ‘‘argued that your verdict should speak for
[the victim]. Your verdict should shout out for justice for him and his family.
It’s the defendant, the defendant sitting there, who put in motion the plan
that resulted in [the victim] being shot through the heart on his doorstep
while his wife was asleep inside. [The prosecutor] further argued to the
jury: [W]e throw around words like the body and talk about the body laying
in the road, [but] he was a man who was shot and killed. There are sons
who lost a father and there’s a wife who lost a husband. Don’t—lose sight
of that because of this sterile environment. Finally, [the prosecutor] told
the jury: [I]f you don’t feel sad for [the victim], you’re not human, right; he
didn’t deserve to be shot and killed.’’ (Internal quotation marks omitted.)
State v. Santiago, supra, 143 Conn. App. 40.
16
In Montoya, the prosecutor argued: ‘‘She has lost trust. Didn’t she say
she was heartbroken? She has lost trust, she has lost innocence. Hasn’t she
lost some happiness, too? Hasn’t she lost some inner peace? She’s sixteen
years old, she testified she’s on antidepressants. Lost, lost, lost, lost. All lost
to this man. To this man, who—you know, we’ll never know why. Whether
it was some sort of horrible plan or if this was just some sudden lapse of
really bad judgment. In those few moments, the state argues that she lost
all those things to this man. Although some portions of the prosecutor’s
comments in this instance were related to [the victim’s] testimony regarding
the impact of the assault on her, we agree with the defendant that the
comments of the prosecutor went too far.
‘‘Although [the victim] testified at trial that the defendant’s actions left
her heartbroken and that she was still taking antidepressants, the prosecutor
put an overly dramatic gloss on this testimony by painting a picture of the
victim with such emotionally laden words as innocence, happiness and inner
peace and through her repeated use of the word lost. Even though the
prosecutor’s statements were grounded in evidence, her language invoked
overly sympathetic images of the victim that improperly appealed to the
emotions of the jury.’’ (Internal quotation marks omitted.) State v. Montoya,
supra, 110 Conn. App. 107–108.
17
‘‘The prosecutor in [State v. Mills, supra, 57 Conn. App. 209–11, 210
n.14] argued to the jury that the state and the victim wanted justice and
justice required a conviction for murder, the victim was not going to be a
nameless, faceless, slab of meat on an autopsy table, and the victim could
not come to court to tell his story.’’ State v. Santiago, supra, 143 Conn.
App. 41.