State v. Carey

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STATE OF CONNECTICUT v. ALANNA R. CAREY
(AC 40868)
Alvord, Sheldon and Eveleigh, Js.
Syllabus
Convicted, following a jury trial, of the crime of murder in connection with
the shooting death of her former boyfriend, the defendant appealed. On
appeal, she claimed, inter alia, that the trial court erred in admitting
the testimony of M, a friend of the victim, to explain the victim’s fear
of the defendant and to rebut the defendant’s claim of self-defense.
Specifically, the defendant claimed that M’s testimony was inadmissible
hearsay and that she was prejudiced by the admission of the state-
ments. Held:
1. The defendant’s claim that the trial court erred in admitting the testimony
of M was unavailing; even if the trial court erred in admitting M’s testi-
mony under the state of mind or residual exceptions to the hearsay
rule, any error was harmless in light of the overwhelming evidence of
the defendant’s consciousness of guilt, as the defendant, after shooting
the victim in a motel room, contacted C, her sister, instead of calling
911, the defendant subsequently left the motel with C and ignored her
family members’ repeated entreaties that she return to the scene of the
shooting and call 911, the defendant returned to the motel only after
being physically pushed out of C’s car, the defendant finally called 911
after approximately three hours had passed from the time of the shoot-
ing, and she misled the 911 operator when she reported the shooting.
2. The defendant could not prevail on her claim that the state engaged in
prosecutorial impropriety that deprived her of a fair trial when, during
direct examination of the defendant, the prosecutor stated that defense
counsel was cheating, as there was no ascertainable evidence in the
record that the state engaged in prosecutorial impropriety during the
defendant’s direct examination; there was no evidence that the prosecu-
tor’s comment was considered by the jury, as the prosecutor’s comment
was not addressed to the jury and although while defense counsel specu-
lated that the jury might have heard the prosecutor, there was no evi-
dence that anyone, other than defense counsel, heard the comment.
3. The defendant’s claim that he was deprived of a fair trial as a result of
prosecutorial improprieties during closing argument was unavailing:
the prosecutor did not improperly impugned the credibility of defense
counsel, as the prosecutor’s challenged comment responded directly to
the statements of defense counsel regarding the credibility of a witness
and properly stated that counsel’s opinion was not evidence that could
be considered by the jury, the prosecutor did not direct the jury to
disregard the trial court’s charge as to the affirmative defense of extreme
emotional disturbance, the transcript having reflected that the prosecu-
tor merely pointed out that there was not a factual basis for the jury
to find that the defendant proved that affirmative defense, and the
prosecutor did not improperly argue facts not in evidence when he said
that a witness impermissibly spoke with the defendant during trial and
that the defendant did not take her car to the motel because she was
trying to avoid being caught on surveillance cameras, or improperly
express his personal opinion regarding the defendant’s credibility when
he stated that the defendant’s credibility was nonexistent, as the chal-
lenged comments asked the jury to draw reasonable inferences from
facts that were properly in evidence and the reasonable inferences to
be drawn from them.
4. The trial court did not abuse its discretion by giving the jury a falsus in
uno instruction, which instructed the jury that if it concluded that a
witness had deliberately testified falsely in some respect, it should care-
fully consider whether to rely on any of that person’s testimony, as the
instruction was within the court’s discretion and the defendant had
failed to show that it misled the jury; the falsus in uno instruction
provided by the court correctly stated the law and merely advised the
members of the jury as to their task of weighing witness credibility,
and although the defendant relied on decisions from other jurisdictions
that advise against the use of falsus in uno instructions, those cases
are merely potentially persuasive authority, our appellate courts have
recognized the maxim falsus in uno, falsus in omnibus as a permissive
instruction, and the defendant did not demonstrate how the instruction
misled the jury.
Argued October 18, 2018—officially released January 29, 2019
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of New Britain, where the court,
Keegan, J., denied in part the defendant’s motion to
preclude certain evidence; thereafter, the matter was
tried to the jury before Keegan, J.; subsequently, the
court denied the defendant’s motion for a mistrial; ver-
dict and judgment of guilty; thereafter, the court denied
the defendant’s motion for a judgment of acquittal and
the defendant’s amended motion for a new trial, and
the defendant appealed. Affirmed.
Jennifer B. Smith, for the appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, John H. Malone, former supervisory assistant
state’s attorney, and David Clifton, assistant state’s
attorney, for the appellee (state).
Opinion
EVELEIGH, J. The defendant, Alanna R. Carey,
appeals from the judgment of conviction, rendered after
a jury trial, of murder in violation of General Statutes
§ 53a-54a (a).1 On appeal, the defendant claims that (1)
the trial court improperly admitted hearsay testimony,
(2) the state engaged in prosecutorial impropriety that
deprived her of a fair trial, and (3) the trial court’s
instruction on witness credibility improperly misled the
jury. We disagree and, accordingly, affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts. The defendant and the victim, Edward Landry,
began dating in May, 1999. Between 1999 and the vic-
tim’s death in January, 2012, the defendant and the
victim had a tumultuous relationship. In 2008, the victim
moved into the defendant’s house in Glastonbury,
where the two lived together until 2011. Many of those
acquainted with the defendant and the victim, including
their relatives and neighbors, described their relation-
ship as volatile and testified that the two often argued
and fought.
On December 12, 2011, the defendant’s twin sister,
Johanna Carey-Lang, learned that the victim was having
an affair with Jodi D’Onofrio when she walked into the
defendant’s home and found the victim and D’Onofrio
together. That same day, the victim called the defendant
and informed her of his infidelity. Nevertheless, later
in the day, Carey-Lang saw the defendant and the victim
‘‘cuddling’’ on a couch in the defendant’s house.
On December 14, 2011, the victim moved out of the
defendant’s house and moved to the Carrier Motor
Lodge in Newington (motel). On that day, the victim
removed his belongings from the defendant’s house
and left his keys in the house, which, according to
D’Onofrio, was an attempt by the victim to communi-
cate to the defendant that their relationship was over.
D’Onofrio also testified that the victim told her that he
did not want to be in a relationship with the defendant
any longer and that he hoped the breakup would be
amicable.
After the victim moved to the motel, he and the defen-
dant remained in contact. Between December 15, 2011
and January 2, 2012, the two exchanged over ninety-five
phone calls and twenty-five text messages. Additionally,
the defendant and the victim saw each other in person
several times during that period.
On December 18, 2011, the defendant checked into
the motel and rented a room close to the victim’s. The
defendant called Carey-Lang from the motel room and
asked her to set up a three way phone call with the
victim. D’Onofrio was with the victim when he received
the defendant’s call. According to D’Onofrio, the defen-
which the victim responded that he loved D’Onofrio.
The victim subsequently informed his friend, Jessica
Montano, of his interaction with the defendant on
December 18, 2011. According to Montano, the victim
recounted that the defendant begged him not to end
their relationship and that, as a result of this interaction,
the victim feared the defendant.
On January 2, 2012, the defendant and Carey-Lang
went to the shooting range at Hoffman’s Gun Center
(gun center) in Newington. Leon Brazalovich, Carey-
Lang’s boyfriend, accompanied the sisters to the gun
center, but did not shoot while he was there. The defen-
dant and Carey-Lang, both of whom had gun permits,
signed in at the front desk and proceeded to shoot at
the range for approximately thirty minutes to an hour.
The defendant used her gun, a pink .380 Ruger light
pistol, to shoot. After the defendant and Carey-Lang
left the range, the defendant asked Brazalovich to load
ammunition she had just purchased at the gun center
into two magazines.
At 1:33 p.m., while the defendant was at the shooting
range, she received a call from the victim. After speak-
ing to the victim, the defendant told Carey-Lang that
she planned to bring him lunch at the motel. At around
2 p.m., the defendant drove Carey-Lang and Brazalovich
to Boston Market, where the defendant ordered lunch.
The defendant then drove to the motel, where she got
out of the car and went to the victim’s room, carrying
the food and her purse, which contained her gun.
About forty-five minutes after the defendant arrived
at the motel, Carey-Lang sent the defendant a text mes-
sage, informing her that she and Brazalovich had fin-
ished lunch. The defendant responded that she would
like to spend another hour at the motel, and Carey-Lang
told her to call when she was ready to be picked up.
Three hours later, at approximately 4:20 p.m., the
defendant sent Carey-Lang a text message, asking:
‘‘When will you be here.’’ Approximately one minute
later, the defendant again texted Carey-Lang, asking:
‘‘When can you pick me up? After dance?’’ Between
5:35 and 6:51 p.m., the following text message exchange
took place:
‘‘[The Defendant]: How long before you get here
‘‘[Carey-Lang]: I [don’t] know. Why
‘‘[The Defendant]: Because he is yelling and threaten-
ing me.
‘‘[Carey-Lang]: Why
‘‘[The Defendant]: He hate[s] me
‘‘[Carey-Lang]: What happened
‘‘[The Defendant]: How long before you get here
‘‘[Carey-Lang]: [I’m] at [Dani’s] g class. [Can’t] leave
‘‘[Carey-Lang]: I [don’t] know
‘‘[The Defendant]: How long?
‘‘[The Defendant]: ???
‘‘[The Defendant]: Hello. . . .
‘‘[Carey-Lang]: Just leaving
‘‘[The Defendant]: How long’’
Between 7:02 and 7:04 p.m., Carey-Lang sent the
defendant text messages instructing the defendant to
meet her at an Aldi market near the motel in five
minutes. Approximately eight minutes later, Carey-Lang
sent the defendant a text message stating that she was
at Aldi. About eighteen minutes after that, at approxi-
mately 7:30 p.m., the defendant called Carey-Lang and
asked her to come to the victim’s room. Sometime dur-
ing the period in which the defendant and Carey-Lang
discussed meeting at Aldi, the defendant shot and killed
the victim.
When Carey-Lang arrived at the motel, the defendant
invited her into the room and informed her that ‘‘[the
victim] came after [the defendant] with a knife, and
that he put a hit on [their] family, and he was going to
take care of [the defendant] himself.’’ The victim’s body
was on the floor when Carey-Lang entered the room,
but she did not recall seeing a knife near the victim.
She checked the victim’s pulse and could not detect
one. Carey-Lang then instructed the defendant to call
911, but the defendant refused to do so.
At approximately 8 p.m., the defendant and Carey-
Lang left the motel room. The defendant took the shell
casings, which she placed in her pocket, with her purse,
her cell phone, and the bag of food from Boston Market.
The two drove from the motel directly to the home of
their brother, Joseph Carey, in Wethersfield.
During the drive to Wethersfield, Carey-Lang contin-
ued to encourage the defendant to call 911. Once they
arrived in Wethersfield, Carey-Lang and Joseph Carey
urged the defendant to return to the motel and call 911.
Eventually, the defendant agreed, and Carey-Lang
drove her back to the motel. Once they reached the
motel, however, the defendant changed her mind and
refused to go back into the victim’s room. Carey-Lang
drove to a nearby parking lot and called Joseph Carey
to ask if he would join them. When Joseph Carey arrived
at the parking lot, Carey-Lang called their father, who
also encouraged the defendant to call 911. After Joseph
Carey spoke with the defendant, Carey-Lang drove the
defendant back to the motel, where she ‘‘sort of tried
to push [the defendant] out of the car’’ and drove away.
After being dropped off at the motel, the defendant
returned to the victim’s room, where she called Carey-
Lang three more times, once at 9:35 p.m. and twice at
9:50 p.m. During the second 9:50 p.m. call, the defendant
asked Carey-Lang to come back to the motel and pick
her up, but Carey-Lang refused to do so.
Finally, at approximately 10 p.m., almost three hours
after the defendant shot the victim, the defendant called
911. The defendant told the 911 operator: ‘‘My boyfriend
and I were, you know, just talking and all of a sudden
he got real angry, he came at me with a knife, and I
was scared. I shot him.’’ The operator asked whether
the victim was moving, and the defendant responded,
‘‘I don’t think so.’’ The defendant also told the operator
that she ‘‘didn’t even know if [she] hit him’’ and, when
asked whether she was injured, the defendant said: ‘‘I
don’t know. I don’t think so.’’
The police arrived at the motel at approximately 10:13
p.m. and instructed the defendant to exit the victim’s
room. Once the defendant had exited the room, the
police placed her in the back of a police vehicle. The
police then entered the room, where they found the
victim’s body on the floor between two beds. Matthew
D’Esposito, an officer with the Newington Police
Department, ‘‘noticed that [the victim] was not breath-
ing, [and that] he had no carotid pulse.’’ D’Esposito
testified that ‘‘[t]here was some slight rigor mortis in
[the victim’s] pinky fingers . . . .’’ After efforts to
resuscitate the victim at the scene failed, he was trans-
ported to Hartford Hospital, where he was pronounced
dead on arrival.
When the police searched the room, they found, on
the floor, the defendant’s gun and three shell casings
that were subsequently determined to have been fired
from that gun. They also found the defendant’s purse,
which contained a gun holster and case, as well as a
magazine containing six .380 caliber bullets. The defen-
dant’s purse also contained a pair of latex gloves. The
defendant’s DNA was found on the exterior of the
gloves.
After the defendant was placed in the back of the
police vehicle, she was transported to the Hospital of
Central Connecticut (hospital), in New Britain, because
she was verbally unresponsive. When the defendant
arrived at the hospital around 10:45 p.m., she was still
unresponsive. From 12:30 a.m. to 7:30 a.m., on January
3, 2012, the defendant failed to respond to painful stim-
uli. Finally, around 7:30 a.m., she was revived by a
sternal rub. Hamid Ehsani, an emergency physician at
the hospital, diagnosed the defendant with conversion
disorder, which is ‘‘a change in the neurologic status
of a patient which cannot be explained easily by any
obvious medical condition.’’ Ehsani was unable to rule
out a diagnosis of malingering, which, in Ehsani’s
words, ‘‘is when one acts in a certain way . . . to suit
[his or her] purposes at the time.’’ At approximately 8
a.m., on January 3, 2012, the defendant was discharged
into police custody.
The jurors heard evidence from various witnesses at
trial. Jason Daniel Elkins, who was in the room next
to the victim’s on the night of the shooting, testified
that he heard three gunshots between 7:16 and 7:38
p.m., but that he did not hear any noises from the room
prior to the gunshots.
Ira Kanfer, a medical examiner employed by the
Office of the Chief Medical Examiner for the state of
Connecticut, testified that the victim had been shot
three times—once in his left shoulder, once in his lower
left abdomen and once in the left side of his chest.
Three bullets matching the caliber of the defendant’s
gun were found inside the victim’s body. Kanfer esti-
mated that the victim’s death was instantaneous or
would have occurred within thirty to forty-five seconds
of the time of the shooting.
John Brunetti, a fingerprint examiner employed by
the state forensic lab, testified that he was unable to find
latent fingerprints on any of the six knives belonging
to the victim that were found inside the victim’s room.
Fung Kwok, a forensic examiner employed by the state
forensic lab, testified that gunshot residue was found
on both the defendant’s and the victim’s hands.2
This appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendant first argues that the trial court erred
in admitting the testimony of Mark Manganello, a friend
of the victim, to explain the victim’s fear of the defen-
dant and to rebut the defendant’s claim of self-defense.
Specifically, the defendant argues that Manganello’s tes-
timony was inadmissible hearsay and that she was prej-
udiced by the admission of the statements. The state
argues that the court did not abuse its discretion in
admitting Manganello’s testimony under the residual
hearsay exception. The state further argues that, even
if the trial court erred in admitting Manganello’s testi-
mony, the error was harmless. We agree with the state
that, even if the trial court erred in admitting Manga-
nello’s testimony, any such error was harmless.3
The following additional facts and procedural history
are relevant to the resolution of this claim. Before trial,
the defendant filed a motion in limine to preclude Man-
ganello from testifying about conversations he had had
with the victim. The defendant argued that the state-
ments were double hearsay and that, even if the defen-
dant’s statements to the victim fell within the state of
mind exception to the hearsay rule, the second layer
of hearsay—the victim’s statements to Manganello—
did not fall within any recognized hearsay exception.
The state objected to the defendant’s motion, arguing
that the statements were admissible under the state of
mind exception to show that the victim feared the
The court denied the defendant’s motion, stating:
‘‘The state is offering this evidence as to a prior bad
act of the defendant, and [it is] claiming that it is relevant
with respect to intent and motive. Testimony of the
victim’s fear of the defendant is relevant, especially in
a case where there is a homicide that involves . . . a
domestic situation where there’s evidence of a deterio-
rating relationship. It’s also relevant to intent and
motive and to rebut a defendant’s self-defense claim.
Again, this evidence will be subject to a limiting instruc-
tion to the jury that [it is] not to consider the evidence
as establishing a predisposition on the part of the defen-
dant to commit the crime charged or to demonstrate a
criminal propensity but, rather, that it bears on the issue
of the defendant’s intent and motive in the case.’’
At trial, Manganello testified that the victim told him
that he went to the defendant’s house on December
24, 2011, to retrieve some belongings. The victim told
Manganello that he thought the defendant was not at
home, and that he entered the house by crawling
through a window. Once he got inside, the victim
encountered the defendant, who pointed a gun at him
and told him that if he ever returned ‘‘she would blow
his f’ing brains out.’’
We begin by briefly setting forth the relevant standard
of review and legal principles for this claim. ‘‘To the
extent a trial court’s admission of evidence is based on
an interpretation of the Code of Evidence, our standard
of review is plenary. . . . We review the trial court’s
decision to admit evidence, if premised on a correct
view of the law, however, for an abuse of discretion.’’
(Citations omitted.) State v. Saucier, 283 Conn. 207,
218, 926 A.2d 633 (2007).
‘‘[W]hen an improper evidentiary ruling is not consti-
tutional in nature, the defendant bears the burden of
demonstrating that the error was harmful. . . .
[W]hether [the improper admission of a witness’ testi-
mony] 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
[improperly admitted] evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict.’’ (Internal quotation marks omit-
ted.) State v. LeBlanc, 148 Conn. App. 503, 508–509, 84
A.3d 1242, cert. denied, 311 Conn. 945, 90 A.3d 975
(2014).
In the present case, even if we assume, without decid-
ing, that the trial court erred in admitting Manganello’s
testimony under the state of mind or residual hearsay
exceptions, any error was harmless in light of the over-
whelming evidence of the defendant’s consciousness
of guilt. After shooting the victim sometime between
7:16 and 7:38 p.m., the defendant did not call 911.
Instead, the defendant called and texted Carey-Lang,
asking her to come to the motel. When Carey-Lang came
to the room, she encouraged the defendant to call 911,
but the defendant refused. Ultimately, the defendant
retrieved the shell casings off of the floor and gathered
her belongings, including her cell phone, her purse, and
the bag of food she had brought, and left the motel
with Carey-Lang. After leaving the motel, the defendant
continued to refuse to call 911, despite being urged to
do so by her brother and her father.
The defendant also ignored her family members’
entreaties that she return to the scene of the shooting.
In fact, the defendant returned to the motel only after
being physically pushed out of Carey-Lang’s car. Even
after the defendant returned to the motel room, she
called Carey-Lang and begged her to return to the motel
and pick her up. Then, before the defendant finally
called 911 at approximately 10:20 p.m., she staged the
scene, putting the shell casings she had earlier picked
up back on the floor.
Moreover, the defendant misled the 911 operator
when she reported the shooting. Almost three hours had
elapsed since the shooting, but the defendant suggested
that the shooting had just occurred. Additionally, even
though the defendant knew that the victim had died
hours earlier, she told the operator: ‘‘I don’t think [he’s
moving].’’ (Emphasis added.) In response to the opera-
tor’s inquiry as to where the victim had been shot, the
defendant said: ‘‘I didn’t even know if I hit him.’’ On
the basis of the foregoing, we conclude that any error
in the admission of Manganello’s testimony did not sub-
stantially affect the verdict and, therefore, was
harmless.
II
The defendant next argues that the state engaged in
prosecutorial impropriety that deprived her of a fair
trial.4 Specifically, the defendant claims that the state
engaged in prosecutorial impropriety when the prosecu-
tor made certain comments during (1) the defendant’s
direct examination and (2) the prosecutor’s closing
argument. In response, the state argues that the prose-
cutor’s comments were not improper and contends that,
even if they were, they did not deprive the defendant
of a fair trial. We conclude that there is no evidence in
the record that the state engaged in prosecutorial impro-
priety.5
We begin by setting forth the applicable standard of
review and legal principles for claims of prosecutorial
impropriety. ‘‘In analyzing claims of prosecutorial
[impropriety], [the reviewing court] engage[s] in a two
step analytical 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 [her] due process right to a
fair trial.’’ (Internal quotation marks omitted.) State v.
Warholic, 278 Conn. 354, 361, 897 A.2d 569 (2006).
‘‘[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. . . . On the
other hand . . . if the defendant raises a claim that
the prosecutorial improprieties infringed a specifically
enumerated constitutional right, such as the fifth
amendment right to remain silent or the sixth amend-
ment right to confront one’s accusers, and the defen-
dant meets his burden of establishing the constitutional
violation, the burden is then on the state to prove that
the impropriety was harmless beyond a reasonable
doubt.’’ (Citation omitted.) State v. Payne, 303 Conn.
538, 562–63, 34 A.3d 370 (2012).
A
First, the defendant argues that the state engaged in
prosecutorial impropriety when, during direct examina-
tion of the defendant, the prosecutor stated that defense
counsel was ‘‘cheating.’’ The defendant argues that this
comment impugned the credibility and trustworthiness
of defense counsel and, therefore, was impermissible.
We disagree.
The following additional facts are relevant to this
claim. During the defendant’s direct examination, the
following exchange occurred:
‘‘[Defense Counsel]: Now, do you know how many
calls you received from December 14, [2011], from [the
victim] up until the point of January 2, [2012]? Do you
know the exact number?
‘‘[The Defendant]: That I do not know.
‘‘[Defense Counsel]: Can you put that up, [clerk]?
Thank you, [clerk]. Okay, and can we—all right, we’ll
come back to that in a moment. No problem, [clerk].
‘‘[Defense Counsel]: [W]ould it refresh your recollec-
tion to look at the document to refresh you on the
number of calls [the victim] made to you and the number
that you made to him during the timeframe of December
14, 2011, to January 2, [2012], would that refresh your
memory to look at something?
‘‘[The Defendant]: I’m not sure.
‘‘[Defense Counsel]: Your Honor, the prosecutor
just said—
‘‘The Court: Let me just say, what is the question here
because I did just hear your client say she’s not sure
she can—
‘‘[Defense Counsel]: The prosecutor said in front of
the jury [that] what I did was cheating just now. I don’t
know who heard it, and I’m concerned because I’m
not cheating.’’
The court then instructed the jury not to consider
the prosecutor’s comment.
At the end of the state’s rebuttal argument, the defen-
dant moved for a mistrial based on this comment and
several additional alleged improprieties committed by
the prosecution during closing argument.6 After hearing
arguments on the motion, the court denied the defen-
dant’s motion, concluding that ‘‘[the prosecutor’s con-
duct did not] rise to the level of error or defect that
results in a substantial or irreparable prejudice to the
defendant’s case.’’
We reject the defendant’s claim because there is no
evidence that the prosecutor’s comment was consid-
ered by the jury. The present case is distinguishable
from State v. Payne, supra, 303 Conn. 564–65, where
the prosecutor told the jury: ‘‘[Y]ou’ve heard defense
counsel tell you her client was honest. It’s your decision
and your duty to decide who is being honest. In fact,
attorneys aren’t even ethically allowed to say a particu-
lar witness is honest or not. That’s for the jury . . . .’’
(Emphasis omitted; internal quotation marks omitted.)
In the present case, the prosecutor’s comment was not
addressed to the jury, and while defense counsel specu-
lated that the jury might have heard the prosecutor,
there is no evidence that anyone, other than defense
counsel, heard the comment. In fact, the court reporter
did not record the comment. Indeed, the comment
might not have been heard by any members of the jury
had defense counsel not repeated it by stating, on the
record, that the prosecutor had just accused him of
cheating. Furthermore, instead of moving for a mistrial
when the prosecutor made the comment at issue, the
defendant proceeded with trial and did not move for a
mistrial until the eve of jury deliberations. We conclude,
therefore, that there is no ascertainable evidence in the
record that the state engaged in prosecutorial impropri-
ety during the defendant’s direct examination. Accord-
ingly, this claim fails.
B
The defendant also claims that the state committed
prosecutorial improprieties during closing argument.
Specifically, the defendant claims that the prosecutor
improperly (1) impugned the integrity of defense coun-
sel, (2) directed jurors to ignore certain jury instruc-
tions, (3) argued facts not in evidence on two occasions,
and (4) expressed his own opinion regarding the defen-
dant’s credibility. We disagree.
At the outset, we set forth the legal principles that
guide our review of allegations of prosecutorial impro-
priety during closing argument. ‘‘[O]ur Supreme Court
has acknowledged that prosecutorial impropriety of a
constitutional magnitude can occur in the course of
closing arguments. In determining whether such
[impropriety] has occurred, the reviewing court must
give due deference to the fact that [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. . . . While a prosecutor may argue the
state’s case forcefully, such argument must be fair and
based upon the facts in evidence and the reasonable
inferences to be drawn therefrom. . . . Consequently,
the state must avoid arguments which are calculated
to influence the passions or prejudices of the jury, or
which would have the effect of diverting the jury’s atten-
tion from [its] duty to decide the case on the evidence.’’
(Citation omitted; internal quotation marks omitted.)
State v. Gordon, 104 Conn. App. 69, 74–75, 931 A.2d
939, cert. denied, 284 Conn. 937, 937 A.2d 695 (2007).
1
First, the defendant claims that the prosecutor
improperly told the jury that defense counsel should
not have offered his personal opinion about the credibil-
ity of a witness. The defendant argues that this comment
improperly impugned the credibility of defense counsel.
We disagree.
The following additional facts and procedural history
are relevant to this claim. During closing argument,
defense counsel stated the following with respect to
D’Onofrio’s testimony: ‘‘I don’t think, in this trial,
[D’Onofrio] was forthcoming on this whole thing where
you can trust her . . . .’’ In response, the prosecutor
said the following during closing argument: ‘‘Counsel
[has] mentioned to you several times that he gave you
his opinion, or at least I see it as his opinion, when he
said he didn’t think that [D’Onofrio] was credible, and
he talked about other things that he thought [about]
people manipulating people. . . . [O]ur opinion is not
in evidence. It’s the evidence that counts. I’m not giving
you my opinion. . . . It’s not proper. But [defense]
counsel did it, and I suggest . . . that when you remem-
ber what he said, that you disregard it. It was just
his opinion.’’
‘‘Although . . . only the court has the authority to
instruct the jury on the law . . . we recognize that in
commenting on facts in evidence and the inferences to
be drawn from them, it is common practice for counsel
to refer to the law.’’ (Citation omitted.) State v. Gordon,
supra, 104 Conn. App. 75. Additionally, ‘‘[w]hen a prose-
cutor’s allegedly improper argument is in direct
response to matters raised by defense counsel, the
defendant has no grounds for complaint.’’ (Internal quo-
tation marks omitted.) State v. Brown, 256 Conn. 291,
309, 772 A.2d 1107, cert. denied, 534 U.S. 1068, 122 S.
Ct. 670, 151 L. Ed. 2d 584 (2001); see, e.g., id. (concluding
that prosecutor’s comment that ‘‘[the defendant is] able
to call [the firefighters] names’’ was not impermissible
because it was in ‘‘direct response to the defendant’s
sarcasm toward one of the firefighters during his cross-
examination and to the [fire] department as a whole
during his closing argument’’ [internal quotation
marks omitted]).
When the prosecutor commented on the statements
made by defense counsel, he stated an established legal
principle, namely, that counsel’s opinion is not evidence
that may be considered by the jury. See, e.g., State v.
Stevenson, 269 Conn. 563, 583, 849 A.2d 626 (2004).
The prosecutor’s comment was permissible under this
court’s decision in Gordon. Additionally, defense coun-
sel raised the matter when he opined on D’Onofrio’s
credibility. The prosecutor’s comment in the present
case, like that of the prosecutor in Brown, responded
directly to the statements of defense counsel. We con-
clude, therefore, that the prosecutor’s comment did not
constitute prosecutorial impropriety.
2
Second, the defendant claims that the prosecutor
improperly ‘‘directed the jury not to follow jury instruc-
tions.’’ Specifically, the defendant argues that the prose-
cutor told the jury that it could dismiss an instruction
regarding the affirmative defense of extreme emotional
disturbance. We disagree.
The following additional facts and procedural history
are relevant to this claim.
At the charging conference on September 29, 2015,
the defendant requested an extreme emotional distur-
bance instruction. The state objected to the instruction,
but, on September 30, 2015, the court ruled that it would
give the instruction. The court gave the jury the extreme
emotional disturbance instruction on October 1, 2015.7
During closing argument, the prosecutor told the jury:
‘‘I would point out also that when we talk about extreme
emotional disturbance, [defense] counsel did not say a
word about that. Perhaps he doesn’t think it’s in the
case either. He never argued to you that [the defendant]
was under extreme emotional disturbance when she
fired the gun. . . . [H]e never even mentioned that in
his argument, and I think that you . . . can dismiss
that from the case. It is an instruction the judge told
us that she would give you, but there’s not a shred
of evidence, and even he doesn’t apparently think it’s
worth much.’’
After closing argument, defense counsel argued to
the court that the prosecutor told the jury to ‘‘dismiss
the [extreme emotional disturbance] instruction.’’ The
prosecutor responded: ‘‘I never said that. I’m sure
[defense counsel] misheard me . . . .’’
‘‘[I]t is the trial court’s obligation to inform the jury
what the law is as applicable to the facts of the case.’’
State v. Theriault, 38 Conn. App. 815, 820, 663 A.2d
423, cert. denied, 235 Conn. 922, 666 A.2d 1188 (1995).
Furthermore, ‘‘only the court has the authority to
instruct the jury on the law . . . .’’ (Citation omitted.)
State v. Gordon, supra, 104 Conn. App. 75. The parties
and their counsel are responsible for presenting facts
rather than law to the trier. See E. Prescott, Tait’s Hand-
book of Connecticut Evidence (6th Ed. 2019) § 1.19.3
(a), p. 72.
The prosecutor did not suggest to the jury that it
‘‘dismiss’’ the court’s instruction, as contended by
defense counsel. Although defense counsel insisted that
the prosecutor used the term ‘‘disregard’’ when dis-
cussing the extreme emotional disturbance instruction
during closing argument, the use of this verb is not
borne out by the record. The transcript reflects that
the prosecutor merely pointed out that there was not
a factual basis for the jury to find that the defendant
proved the affirmative defense of extreme emotional
disturbance. In so doing, the prosecutor did not tell the
jury to disregard the court’s charge; rather, he remarked
on the lack of evidence available to the members of
the jury in their consideration of the affirmative defense
of extreme emotional disturbance instruction. On this
basis, we conclude that the prosecutor did not improp-
erly direct the jury to ignore the court’s instructions
with regard to the affirmative defense of extreme emo-
tional disturbance.
3
Third, the defendant claims that the prosecutor
improperly argued facts not in evidence twice during
closing argument—once when he said that the defen-
dant did not take her car to the motel because she was
trying to avoid being caught on surveillance cameras,
and again, when he said that Carey-Lang impermissibly
spoke with the defendant during trial. The state argues
that these comments supported reasonable inferences
that the jury could have drawn from the evidence pre-
sented. We agree with the state.
The following additional facts and procedural history
are relevant to this claim. At trial, the jury heard a
tape recorded conversation between the defendant and
Carey-Lang. In this conversation, the defendant asked
Carey-Lang to send photographs of her home to her
counsel, which Carey-Lang said she could not do
because there was a sequestration order in place. The
court informed the jury that the recording was to be
used for impeachment purposes only, not to show that
Carey-Lang violated the sequestration order. During
closing argument, the prosecutor said: ‘‘[The defendant]
brings in her sister again, [Carey-Lang], who we already
know has violated the court’s order about not talking
about the evidence when she talked to her sister about
the case.’’
The jury also heard evidence that the motel where
the victim was shot had been the site of criminal activity
in the past. The defendant testified that she brought
her gun with her to the motel because she believed it
was in a dangerous area. During closing argument, the
prosecutor said that the defendant did not drive her
own car to the motel because ‘‘[s]he [could] reasonably
expect there’d be video cameras’’ at the motel.
It is well established that ‘‘[c]ounsel may comment
upon facts properly in evidence and upon reasonable
inferences to be drawn from them. . . . Counsel may
not, however, comment on or suggest an inference from
facts not in evidence.’’ (Internal quotation marks omit-
ted.) State v. Lopez, 280 Conn. 779, 803, 911 A.2d 1099
(2007); see, e.g., id., 804 (‘‘the prosecutor did not rely
on a fact not in evidence when he drew the jury’s atten-
tion to the fact that the testimony of the witnesses who
could not specifically identify the defendant was not
inconsistent with the testimony of the two witnesses
who did identify him’’).
In the present case, the comments the prosecutor
made during closing argument asked the jury to draw
reasonable inferences from facts that were properly in
evidence. When the prosecutor commented on Carey-
Lang’s violation of the sequestration order, the jury
had already heard the recording of the phone call that
supported that assertion. Similarly, the prosecutor’s
comment regarding surveillance cameras was based on
inferences the jury could draw from evidence that the
defendant believed that the motel was in a dangerous
area. As the prosecutor pointed out, the defendant could
‘‘reasonably expect’’ that there were surveillance cam-
eras at the motel because it was in an area where crimi-
nal activity might occur. Additionally, the prosecutor
did not explicitly state that the motel had surveillance
cameras. Rather, he said that the defendant could ‘‘rea-
sonably expect’’ that the motel had them. We conclude,
therefore, that the prosecutor did not improperly argue
facts that were not in evidence.
4
Fourth, the defendant argues that the prosecutor
impermissibly gave his personal opinion regarding her
credibility during closing argument. We disagree.
The following additional facts and procedural history
are relevant to this claim. During closing argument, the
prosecutor said the following to the jury: ‘‘I submit that
the defendant’s credibility is nonexistent. Her claim of
self-defense is incredible and . . . the state has dis-
proved it beyond a reasonable doubt.’’ The prosecutor
then discussed evidence from the defendant’s testimony
in support of the state’s argument that the defendant
was not a credible witness. When defense counsel
moved for a mistrial, he argued that the prosecutor,
during closing argument, had called the defendant a
‘‘liar’’ and accused her of ‘‘deliberately’’ lying.
‘‘[A] prosecutor may not express his [or her] own
opinion, directly or indirectly, as to the credibility of
the witnesses. . . . Such expressions of personal opin-
ion are a form of unsworn and unchecked testimony,
and are particularly difficult for the jury to ignore
because of the prosecutor’s special position. . . . Put
another way, the prosecutor’s opinion carries with it
the imprimatur of the [state] and may induce the jury
to trust the [state’s] judgment rather than its own view
of the evidence. . . . Moreover, because the jury is
aware that the prosecutor has prepared and presented
the case and consequently, may have access to matters
not in evidence . . . it is likely to infer that such mat-
ters precipitated the personal opinions. . . . However,
[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 . . . . We
must give the jury the credit of being able to differenti-
ate between argument on the evidence and attempts to
persuade [it] to draw inferences in the state’s favor, on
one hand, and improper unsworn testimony, with the
suggestion of secret knowledge, on the other hand.’’
(Citation omitted; internal quotation marks omitted.)
State v. Stevenson, supra, 269 Conn. 583; see, e.g., id.,
584 (‘‘The assistant state’s attorney’s remark during
closing argument describing the defendant’s explana-
tion as to how he obtained money to buy drugs as
‘totally unbelievable’ did not necessarily express her
personal opinion. Rather, it was a comment on the
evidence presented at trial, and it posited a reasonable
inference that the jury itself could have drawn without
access to the assistant state’s attorney’s personal
knowledge of the case.’’).
The prosecutor’s statement about the defendant’s
credibility was permissible because the prosecutor was
commenting on facts properly in evidence and reason-
able inferences to be drawn from them. Like the prose-
cutor’s comment in Stevenson, the prosecutor’s
comments regarding the defendant’s credibility in the
present case were based on reasonable inferences that
could be made based on the defendant’s testimony and
demeanor at trial. In fact, the prosecutor specifically
cited evidence in support of his comments about the
defendant’s lack of credibility, including the defendant’s
testimony regarding text messages that she exchanged
with the victim on December 31, 2011,8 and ‘‘her story,
what she claims actually happened in [the victim’s
room]’’ prior to the shooting. Moreover, at the outset
of closing argument, the prosecutor cautioned the jury
to ignore any expressions of personal opinion he might
make, stating: ‘‘I don’t intend to offer you my personal
opinion on this case. My personal opinion is completely
irrelevant. So, if there’s ever a point in my argument
. . . that you feel I’m expressing a personal opinion,
please disregard that. That is not my intention.’’ Based
on the foregoing, we conclude that the prosecutor did
not improperly express his personal opinion as to the
defendant’s credibility.
III
Finally, the defendant claims that the trial court
abused its discretion and misled the jury by giving a
falsus in uno instruction.9 Specifically, the defendant
argues that, because falsus in uno instructions are not
mandatory in Connecticut and other courts have
advised against them, the court erred in giving such an
instruction. The state argues that giving the instruction
was squarely within the court’s discretion and did not
mislead the jury. We agree with the state.
We begin by setting forth the standard of review
relevant to this claim. ‘‘Our review of [a jury instruction]
claim requires that we examine the [trial] court’s entire
charge to determine whether it is reasonably [probable]
that the jury could have been misled . . . . While a
request to charge that is relevant to the issues in a case
and that accurately states the applicable law must be
honored, a [trial] court need not tailor its charge to the
precise letter of such a request. . . . If a requested
charge is in substance given, the [trial] court’s failure
to give a charge in exact conformance with the words
of the request will not constitute a ground for reversal.
. . . As long as [the instructions] are correct in law,
adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions as
improper. . . . Additionally, we have noted that [a]n
[impropriety] in instructions in a criminal case is revers-
ible . . . when it is shown that it is reasonably possible
for [improprieties] of constitutional dimension or rea-
sonably probable for nonconstitutional [improprieties]
that the jury [was] misled. . . . A challenge to the valid-
ity of jury instructions presents a question of law over
which [we exercise] plenary review.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Daniel
W. E., 322 Conn. 593, 610, 142 A.3d 265 (2016).
The following additional facts and procedural history
are relevant to this claim. The following instruction was
included in the court’s proposed jury instructions: ‘‘If
you conclude that a witness has deliberately testified
falsely in some respect, you should carefully consider
whether you should rely on any of that person’s testi-
mony.’’ The defendant objected to the proposed jury
instructions twice and requested that the quoted sen-
tence be removed. The defendant argued that this
instruction was prejudicial because the case ‘‘turn[ed]
so tightly on whether [the jury] believe[d] her testimony
. . . .’’ The state argued that the instruction ought to
be given in the present case because it believed that
the defendant testified falsely about a series of text
messages that she exchanged with the victim on Decem-
ber 31, 2011.10
The court’s final instructions included the sentence
to which the defendant had objected. The court quali-
fied this instruction by including the following language
in the jury charge: ‘‘In deciding whether or not to believe
a witness, keep in mind that people sometimes forget
things. You need to consider, therefore, whether a con-
tradiction is an innocent lapse of memory or an inten-
tional falsehood, and that may depend on whether it has
to do with an important fact or with only a small detail.’’
‘‘Connecticut recognizes the maxim falsus in uno,
falsus in omnibus as a permissive instruction. . . .
Instruction on the maxim is a matter resting in the
sound discretion of the trial judge. . . . Furthermore,
the court has broad discretion regarding the instruction
on the falsus in uno, falsus in omnibus maxim.’’ (Cita-
tions omitted; footnotes omitted; internal quotation
marks omitted.) Opotzner v. Bass, 63 Conn. App. 555,
563–65, 777 A.2d 718, cert. denied, 257 Conn. 910, 782
A.2d 134 (2001), and cert. denied, 259 Conn. 930, 793
A.2d 1086 (2002); see, e.g., id., 564–65 (concluding that
jury was not misled by court’s instruction that if it found
that witness ‘‘gave false testimony . . . you should
. . . believe those parts of it which you think in your
exercise of judgment and discretion you should believe’’
[internal quotation marks omitted]). Like the trial court
in Opotzner, the court in the present case correctly
stated the falsus in uno maxim and informed the jury
that it could, in its judgment, choose whether to believe
a witness. The falsus in uno instruction provided by
the court in the present case correctly stated the law
and merely advised the members of the jury as to their
task of weighing witness credibility.
The defendant cites decisions from other courts,
including state courts in Florida, Alabama, and Rhode
Island, and two federal circuit courts of appeal, which
advise against the use of falsus in uno instructions.
These decisions, however, are merely potentially per-
suasive authority, and the defendant has failed to cite
any Connecticut case law that disapproves generally of
the use of falsus in uno instructions. Indeed, the charge
has been used in Connecticut for many years. See Raia
v. Topehius, 165 Conn. 231, 234, 332 A.2d 93 (1973)
(‘‘[t]he maxim falsus in uno, falsus in omnibus in its
permissive form has been approved in this state as an
instruction to the jury in relation to [its] determination
of the credibility of witnesses’’); see also Willametz v.
Guida-Seibert Dairy Co., 157 Conn. 295, 297, 301, 254
A.2d 473 (1968); Craney v. Donovan, 92 Conn. 236, 246,
102 A. 640 (1917); Gorman v. Fitts, 80 Conn. 531, 538,
69 A. 357 (1908). We, therefore, are not persuaded that
we should overrule such an established practice. More-
over, the defendant has not demonstrated how the
instruction misled the jury in the present case. For the
foregoing reasons, we conclude that the defendant has
failed to show that the instruction misled the jury and,
therefore, that the court did not abuse its discretion by
giving the falsus in uno instruction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . except that in any prosecution
under this subsection, it shall be an affirmative defense that the defendant
committed the proscribed act or acts under the influence of extreme emo-
tional disturbance for which there was a reasonable explanation or excuse,
the reasonableness of which is to be determined from the viewpoint of a
person in the defendant’s situation under the circumstances as the defendant
believed them to be . . . .’’
2
Kwok explained that gunshot residue could be transferred by physical
contact with someone who had recently shot a gun.
3
Because we conclude that the admission of the testimony was harmless,
we need not address whether the court erred in admitting Manganello’s
testimony under the state of mind or residual hearsay exceptions.
4
Specifically, the defendant argues that she was denied a fair trial as
guaranteed by ‘‘the fifth and fourteenth amendments to the [United States]
constitution and article first, § 8, of the Connecticut constitution.’’
5
Because we conclude that the prosecutor’s comments were not improper,
we need not address whether they deprived the defendant of a fair trial.
6
The instances of alleged prosecutorial impropriety during closing argu-
ment are discussed in detail in subsequent sections of this opinion.
7
The court instructed the jury in relevant part: ‘‘There are three parts to
this affirmative defense [of extreme emotional disturbance]. The defendant
must prove each of these parts by a preponderance of the evidence: one,
that the defendant was exposed to an extremely unusual and overwhelming
stress that was more than annoyance or unhappiness; two, that the defendant
had an extreme emotional reaction to the stress, as a result of which there
was a loss of self-control, and reason was overborne by extreme intense
feelings, such as passion, anger, distress, grief, excessive agitation or other
similar emotions; and three, that from the viewpoint of a reasonable person
in the defendant’s situation, under all the circumstances as the defendant
believed them to be, there was a reasonable explanation or excuse for such
extreme emotional disturbance influencing her conduct.’’
8
These text messages, which the state used to impeach the defendant,
are set forth subsequently. See footnote 10 of this opinion.
9
‘‘The prerogative of the fact finder to discredit the entire testimony of
a witness if it determines that the witness intentionally has testified falsely
in some respect is referred to by the Latin maxim falsus in uno, falsus in
omnibus.’’ State v. Caracoglia, 134 Conn. App. 175, 191, 38 A.3d 226 (2012).
The maxim literally means ‘‘false in one, false in all.’’ Id., 191 n.4.
10
The defendant testified that the following text messages referred to
UGG boots: ‘‘[The Defendant]: Please call about product. . . .
‘‘[The Defendant]: Can you get what we talked about?
‘‘[The Victim]: How much . . . .
‘‘[The Defendant]: [Two] 8’s.’’
Keith Graham, a sergeant with the Connecticut Statewide Narcotics
Bureau, testified, however, that based on his training and experience, ‘‘two
8s’’ refers to ‘‘8 balls’’ of cocaine, or about seven grams of the drug.