State v. Hargett

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STATE OF CONNECTICUT v. NASIR R. HARGETT
(AC 42405)
Lavine, Elgo and Moll, Js.
Syllabus
Convicted of the crime of murder in connection with the shooting death of
the victim, the defendant appealed. He claimed that the trial court vio-
lated his right to present a defense when it excluded certain evidence
of an alleged statement made by a bystander and an autopsy toxicology
report, violated his right to due process when it declined to give a
jury instruction on self-defense, improperly admitted firearm related
evidence including, inter alia, reports by a state firearms expert, R, and
violated his right to a fair trial when it failed to grant his motions for
sanctions, for a new trial or to dismiss the charges after the state’s late
disclosure of the firearms related evidence. He further claimed that he
was denied the right to a fair trial due to prosecutorial impropriety. Held:
1. The trial court did not abuse its discretion or violate the defendant’s right
to present a defense by excluding evidence of a statement allegedly
made by an unidentified bystander and the toxicology portion of the
victim’s autopsy report.
a. The defendant failed to demonstrate the relevancy to his claim of
self-defense or to lay an evidentiary foundation for the unidentified
bystander’s alleged statement; the defendant failed to lay the foundation
necessary to admit the alleged statement as relevant to his state of
mind, in that he failed to offer any testimony that the alleged statement
influenced his assessment of the need to use deadly physical force
against the victim and, as there was no evidence that the defendant
heard the alleged statement, it was irrelevant to his motive.
b. The trial court properly excluded the toxicology report from evidence:
there was no causal relationship between the victim having PCP in his
body and the defendant having shot him; moreover, at trial, the defendant
failed to explain why the presence of PCP in the victim was relevant
to his claim of self-defense or his intent and there was no evidence that
the defendant feared the victim or that the victim threatened anyone
and there was no evidence that the victim confronted the defendant
with the imminent use of deadly force from which the jury could have
inferred that the defendant acted in self-defense; furthermore, the state’s
evidence was sufficient to disprove self-defense beyond a reasonable
doubt.
2. The trial court did not violate the defendant’s right to due process by
failing to give a self-defense jury instruction; no reasonable juror could
have believed that the defendant was in imminent or immediate danger
so as to warrant the use of deadly physical force, because there was
no evidence that the defendant was afraid of the victim, there was no
evidence of a conversation between the defendant and the victim before
the victim left the defendant’s porch and there was no evidence that,
after the defendant followed the victim down the street, the victim
moved toward the defendant, made a threatening gesture or made a
verbal threat indicative of immediate or imminent harm.
3. The trial court did not abuse its discretion by failing to sanction the state
for its late disclosure of the murder weapon and, thus, properly denied
the defendant’s motion for a new trial or to dismiss the charges on the
basis of the state’s late disclosure of the murder weapon and related
materials: although the disclosure of the murder weapon was late, it
did not constitute bad faith, and the firearms evidence, including R’s
reports, was disclosed during jury selection and before R testified; more-
over, the state disclosed R’s report to the defendant as soon as the state
was aware of the report and made R available to the defendant before
trial but the defendant elected not to examine them, and the defendant
was able to address R’s reports and changes to them when R testified;
furthermore, the court was willing to grant the defendant a continuance
and offered the defendant the option to continue plea negotiations before
evidence began, but the defendant did not elect to do either; moreover,
the defendant failed to explain how a firearms expert could have assisted
his theory of self-defense.
4. The defendant was not deprived of a fair trial by prosecutorial impropriety
during closing arguments: although the prosecutor’s statement that the
defendant killed the victim ‘‘in cold blood’’ was improper, the defendant
failed to object to the prosecutor’s use of the phrase, defense counsel
used the phrase himself, the prosecutor stated the phrase only once,
the use of the phrase was not central to the case and the state’s case
against the defendant was strong; moreover, the prosecutor’s argument
that the case was a senseless American tragedy was not improper, as
the statements were grounded in evidence and the jury reasonably could
have concluded that the unexplained shooting death of the victim was
a tragedy.
Argued September 10, 2019—officially released March 3, 2020
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of Fairfield, where the court, Pavia,
J., denied the defendant’s motion for sanctions; there-
after, the case was tried to the jury; subsequently, the
court granted the state’s motions to preclude certain
evidence and denied the defendant’s motion for sanc-
tions; thereafter, the court denied the defendant’s
motion for judgment of acquittal and request for a jury
instruction; verdict and judgment of guilty, and sen-
tence enhanced for the use of a firearm in the commis-
sion of a felony, from which the defendant appealed.
Affirmed.
Ann M. Parrent, assistant public defender, for the
appellant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were John C. Smirga,
state’s attorney, and Ann P. Lawlor, senior assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Nasir R. Hargett, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of murder. In addition, the jury also
found, pursuant to an interrogatory, that ‘‘the defendant
employed the use of a firearm in the commission of a
felony,’’ and the court accordingly enhanced his sen-
tence. On appeal, the defendant claims that the trial
court (1) violated his sixth amendment right to present
a defense by excluding from evidence (a) a statement
purportedly made by a bystander and (b) an autopsy
toxicology report, (2) violated his right to due process
by declining to give a jury instruction on self-defense,
(3) abused its discretion by admitting firearm related
evidence, and (4) violated his right to a fair trial by
failing to grant his motion for a new trial or to dismiss
the charges. The defendant also claims that he was
denied the right to a fair trial due to prosecutorial impro-
priety that occurred during final argument. We affirm
the judgment of the trial court.
The following procedural history and facts the jury
reasonably may have found beyond a reasonable doubt
are relevant to our resolution of the defendant’s claims
on appeal. On October 13, 2014, the defendant was an
eighteen year old high school student living with his
parents on East Main Street in Bridgeport. At approxi-
mately noon that day, Kaishon McAllister and his
friends Romy and Kahdeem were talking with the defen-
dant on the porch of the defendant’s home when a man
in a black coat, later identified as the victim, Davon
Robertson, walked up. According to McAllister, the vic-
tim was acting ‘‘weird’’ and appeared to be ‘‘high.’’ When
the victim reached into his pocket, McAllister thought
the victim was going to shoot up the porch, although
McAllister did not see a weapon. McAllister was ner-
vous and went inside the defendant’s home with Romy
and Kahdeem. The defendant remained on the porch.
The victim approached the porch and snatched a bottle
of soda that McAllister had set down there. The victim
then left the area and walked toward Pearl Street.
After the victim moved on, McAllister exited the
defendant’s home, intending to walk to his own home
on Pearl Street. Romy and Kahdeem were with him. The
defendant, however, went into his home and retrieved
a gun. McAllister described it as a big gun that was
sawed off and could not be held in just one hand. The
defendant caught up to McAllister, and the two followed
the victim toward Pearl Street. McAllister stated to the
defendant: ‘‘Whatever you do, don’t do this . . . don’t
do this like your life is on the line.’’ The victim turned
on Pearl Street and walked toward Brooks Street. The
defendant and McAllister continued to walk behind him.
When the defendant was in front of McAllister’s house,
he called, ‘‘Yo’’ and the victim turned around. The defen-
dant and the victim ‘‘locked eyes’’ and exchanged
words. The defendant then fired the gun at the victim;
McAllister gave contradicting testimony as to whether
the victim was facing or turned away from the defen-
dant. The defendant fired three shots: the first shot
missed, the second one hit the victim, and the third
shot struck him while he was on the ground near the
corner of Pearl and Brooks Streets. McAllister, Romy,
and Kahdeem were in shock and ran into McAllister’s
home. The defendant ran from the scene. The victim
was taken to Bridgeport Hospital where he was pro-
nounced dead. No weapon—gun or knife—was found
on his body.
Later that day, the police searched the crime scene
and recovered two .22 caliber shell casings and a soda
bottle. They also executed a search warrant on the
defendant’s home and seized a hacksaw and a file from
his bedroom. The police also interviewed McAllister
and recorded his statement. The defendant was arrested
the following day and charged with murder. The state
subsequently filed an amended information charging
the defendant with murder and use of a firearm in the
commission of a felony.
Susan Williams, assistant state medical examiner,
performed an autopsy of the victim’s body, which
revealed gunshot wounds to the victim’s chest and
lower right leg. She removed a bullet from the victim’s
chest and a bullet fragment from his leg. Williams
opined that the cause of death was gunshot wounds
to the left chest1 and right leg; the manner of death
was homicide.
On February 21, 2017, the defendant filed a motion
for a speedy trial, which was granted by the court;
jury selection commenced on February 27, 2017. At
the conclusion of evidence and following arguments of
counsel, the court charged the jury on murder, the lesser
included offense of manslaughter, and use of a firearm
in the commission of a felony. After the jury found the
defendant guilty of murder and that he employed a
firearm in the commission of a felony, the court
imposed a total effective sentence of forty-five years in
the custody of the Commissioner of Correction. Addi-
tional facts will be set forth as needed.
I
On appeal, the defendant claims that the court vio-
lated his constitutional right to present a defense by
excluding from evidence (a) a statement purportedly
made by an unidentified woman who claimed that the
victim had robbed her at knifepoint, and (b) the toxicol-
ogy portion of the autopsy report (toxicology report).
The defendant claims that the woman’s statement and
the toxicology report would have helped the jury deter-
mine, on the basis of ‘‘the imprecise account of one
teenager,’’2 what was in the defendant’s mind at the
moment he fired a weapon that fatally wounded the
victim. The state contends that the unidentified wom-
an’s statement and the toxicology report are irrelevant
to the determination of the defendant’s intent. We agree
with the state.
The defendant also claims on appeal that the court
abused its discretion by excluding the unidentified
woman’s purported statement and thereby prevented
him from presenting evidence that he shot the victim
in self-defense. We decline to review this evidentiary
claim, as the defendant never proffered the woman’s
purported statement to show its alleged effect on his
state of mind; see Conn. Code Evid. § 8-3 (4); and thus
the evidentiary claim was unpreserved for appellate
review. ‘‘[T]he standard for the preservation of a claim
alleging an improper evidentiary ruling at trial is well
settled. This court is not bound to consider claims of law
not made at trial.’’ (Internal quotation marks omitted.)
State v. Miranda, 327 Conn. 451, 464, 174 A.3d 770
(2018). ‘‘Appellate review of evidentiary rulings is ordi-
narily limited to the specific legal [ground] raised by
. . . trial counsel. . . . To permit a party to raise a
different ground on appeal than [that] raised during
trial would amount to trial by ambuscade, unfair to
both the trial court and to the opposing party.’’ (Internal
quotation marks omitted.) State v. Jones, 115 Conn.
App. 581, 601, 974 A.2d 72, cert. denied, 293 Conn.
916, 979 A.2d 492 (2009). Even if the defendant had
preserved this claim, the evidence was inadmissible as
we explain herein.
The following additional facts are relevant to our
resolution of the defendant’s claims. Prior to trial, the
state filed three motions in limine to preclude the admis-
sion of certain evidence, including the unidentified
woman’s purported statement and the results of the
toxicology report, indicating the presence of PCP3 in
the victim’s body.
As to the woman’s statement, McAllister told police
that a woman on the street stated, after the victim had
walked away from the porch but prior to the shooting,
that the victim had robbed her at knifepoint. The state
argued that the woman’s statement should not be admit-
ted into evidence because it was hearsay and did not
fall within any recognized exception to the hearsay rule.
Moreover, the state argued that the woman’s statement
was irrelevant, would confuse the jury, and was prejudi-
cial evidence of the victim’s character. Counsel for the
defendant argued that the woman’s statement was rele-
vant to show the defendant’s intent and that he feared
that the victim was armed and dangerous. Counsel also
argued that the statement was admissible under the
excited utterance exception to the hearsay rule. The
court deferred ruling until trial.
With respect to the toxicology report, the defendant
claims that it was ‘‘unique scientific evidence that the
substance influencing [the victim’s] behavior may have
been PCP.’’ The state argued that the victim’s death
was caused by multiple gunshot wounds and that the
presence of PCP in his body was irrelevant as it did
not tend to make the existence of any material fact
more or less probable that the defendant caused the
victim’s death. The state further argued that, even if the
toxicology report were relevant, it should be excluded
pursuant to § 4-3 of the Connecticut Code of Evidence4
because its admission would prejudice the state as inad-
missible character evidence, as it could turn the focus
of the trial to the victim’s having ingested an illegal
substance. Again the court deferred its ruling until trial.
We begin our analysis by setting forth the standard
of review. ‘‘It is well established that a trial court has
broad discretion in ruling on evidentiary matters,
including matters related to relevancy. . . . Accord-
ingly, the trial court’s ruling is entitled to every reason-
able presumption in its favor . . . and we will disturb
the ruling only if the defendant can demonstrate a clear
abuse of the court’s discretion. . . .
‘‘The federal constitution require[s] that criminal
defendants be afforded a meaningful opportunity to
present a complete defense. . . . The sixth amend-
ment right to compulsory process includes the right to
offer the testimony of witnesses, and to compel their
attendance, if necessary, [and] is in plain terms the right
to present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the
jury so that it may decide where the truth lies. . . .
The defendant’s sixth amendment right, however, does
not require the trial court to forgo completely restraints
on the admissibility of evidence. . . . Generally, an
accused must comply with established rules of proce-
dure and evidence in exercising his right to present a
defense. . . . A defendant, therefore, may introduce
only relevant evidence, and, if the proffered evidence is
not relevant, its exclusion is proper and the defendant’s
right is not violated. . . .
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . Evidence is relevant if it tends to make the exis-
tence or nonexistence of any other fact more probable
or less probable than it would be without such evidence.
. . . To be relevant, the evidence need not exclude all
other possibilities; it is sufficient if it tends to support
the conclusion [for which it is offered], even to a slight
degree.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Cerreta, 260 Conn.
251, 260–62, 796 A.2d 1176 (2002).
‘‘We first review the trial court’s evidentiary rulings,
if premised on a correct view of the law . . . for an
abuse of discretion. . . . If, after reviewing the trial
court’s evidentiary rulings, we conclude that the trial
court properly excluded the proffered evidence, then
the defendant’s constitutional claims necessarily fail.’’
(Internal quotation marks omitted.) State v. David N.J.,
301 Conn. 122, 133, 19 A.3d 646 (2011).
A
The defendant claims that the court denied him the
right to present a defense when it sustained the state’s
objection to his cross-examination of McAllister regard-
ing the unidentified woman’s purported statement.
We disagree.
Prior to the presentation of evidence, the court revis-
ited the state’s motions in limine in an effort to elicit
more precisely the scope of the state’s objection. The
state argued that the statement was hearsay and irrele-
vant. The court stated that it would not prevent the
defense from asking fact witnesses about their observa-
tions, but that counsel should address the basis of hear-
say proffers and objections and speculation outside the
presence of the jury.
During cross-examination of McAllister, defense
counsel questioned him about an African-American
woman who approached him, Romy, and Kahdeem as
they left the porch of the defendant’s home. Although
the woman was yelling, McAllister did not think that
she was excited. Defense counsel asked McAllister, ‘‘[I]f
anything, what did the African-American woman tell
you?’’ The state objected, and the court sustained the
state’s objection. Defense counsel argued that he was
not offering the woman’s statement for the truth of the
matter asserted, but only to demonstrate that she made
it. The court responded that ‘‘the fact that somebody
said something certainly doesn’t warrant an exception
to the hearsay rule.’’ Defense counsel did not ask that
the jury be excused for further argument.5 The question,
therefore, is whether the court properly sustained the
state’s objection to the unidentified woman’s statement
on the grounds of relevancy and hearsay. See footnotes
4 and 6 of this opinion.
1
The defendant claims that the court abused its discre-
tion by precluding him from placing the unidentified
woman’s purported statement into evidence on the
ground of relevancy. We conclude that the court did
not abuse its discretion.
As we previously noted, ‘‘evidence that is not relevant
is inadmissible.’’ State v. Chiclana, 149 Conn. App. 130,
144, 85 A.3d 1251, cert. denied, 311 Conn. 950, 90 A.3d
977 (2014). ‘‘To be admissible, [a] statement must . . .
be relevant, both in the sense that it must relate to a
material issue in the case and that it must have a logical
tendency to aid the trier in the determination of a mate-
rial issue.’’ State v. Esposito, 223 Conn. 299, 315, 613
A.2d 242 (1992).
In the present case, the court found that the defen-
dant had failed to demonstrate that the unidentified
woman’s purported statement that the victim had just
robbed her at knifepoint was relevant. The proffered
statement is, in essence, in the nature of character evi-
dence. In other words, the defendant sought to present
evidence of the victim’s alleged propensity for violence.
Although a victim’s character ordinarily is irrelevant
evidence in a murder trial, ‘‘[i]t is well settled . . . that
an accused may introduce evidence of the violent, dan-
gerous or turbulent character of the victim to show
that the accused had reason to fear serious harm, after
laying a proper foundation by adducing evidence that
he acted in self-defense and that he was aware of the
victim’s violent character.’’ (Emphasis added.) State v.
Miranda, 176 Conn. 107, 109, 405 A.2d 622 (1978). Our
Supreme Court has expanded the rule ‘‘to allow the
accused to introduce evidence of the victim’s violent
character to prove that the victim was the aggressor,
regardless of whether such character evidence had been
communicated to the accused prior to the homicide.’’
State v. Smith, 222 Conn. 1, 17, 608 A.2d 63, cert. denied,
506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992).
The expansion of the rule permitting character evidence
to show that a victim was in fact the aggressor, irrespec-
tive of the defendant’s state of mind, does not, however,
obviate the need for the proponent of the evidence to
lay an evidentiary foundation for a self-defense claim.
See Conn. Code Evid. § 4-4 (a) (2)6 (character evidence
not admissible to prove conduct except under limited
exceptions, including character of victim in homicide,
‘‘after laying a foundation that the accused acted in
self-defense’’); see also E. Prescott, Tait’s Handbook of
Connecticut Evidence (6th Ed. 2018) § 4.9.1, pp. 158–59
(if self-defense not an issue, evidence of alleged victim’s
character immaterial); E. Prescott, supra, § 8.8.2, p. 514
(underscoring principle that ‘‘[s]tatements admitted to
show the effect on the hearer are not hearsay, but they
should not be admitted unless the hearer’s state of mind
or subsequent conduct is relevant’’).
Here, the defendant contends that (1) the unidentified
woman’s statement was admissible nonhearsay
because ‘‘[t]he fact that the woman said [the victim]
robbed her, regardless of whether it was true, was rele-
vant to motive and specific intent and to complete the
story of the charged crime by placing it in the context
of nearby and nearly contemporaneous happenings’’
(emphasis omitted; internal quotation marks omitted),
citing, among others, State v. Taylor G., 315 Conn.734,
771, 110 A.3d 338 (2015), (2) ‘‘[t]he woman’s statement
tended to support an inference that [the defendant]
believed [the victim] was armed, dangerous, and had
just committed a violent crime,’’ (3) the evidence was
relevant to self-defense, and (4) the statement was also
admissible for its truth under the spontaneous utterance
exception to the hearsay rule. We disagree.
The defendant’s reliance on State v. Taylor G., supra,
315 Conn. 771, and State v. Ali, 233 Conn. 403, 427, 660
A.2d 337 (1995), is misplaced. Both cases address the
admissibility of evidence of the defendant’s prior mis-
conduct, not the victim’s. Those cases hold that a propo-
nent who claims that the evidence will ‘‘complete the
story’’ of the charged crime must establish the relevancy
of such evidence. State v. Taylor G., supra, 771; State
v. Ali, supra, 427. The cases, therefore, are inapposite
to the present case.
Moreover, even if the defendant had heard and
believed the unidentified woman that the victim was
armed, dangerous, and had just committed a violent
crime, the defendant’s failure to (1) claim and (2) lay
an evidentiary foundation to demonstrate that he acted
in self-defense makes that belief—and the statement
itself—irrelevant. See State v. Miranda, supra, 176
Conn. 109. The record indicates that the defendant
failed to satisfy two requirements for placing the pur-
ported statement in evidence: (1) laying a foundation
that he acted in self-defense; and (2) offering the state-
ment as relevant to his claim of self-defense. Rather,
the defendant merely attempted to introduce the evi-
dence as a nonhearsay statement without first having
established the threshold requirements of relevancy.7
The evidentiary procedure for introducing character
evidence for either a victim or a defendant to demon-
strate he or she was the aggressor is the same. Our
Supreme Court has instructed that evidence of a murder
victim’s violent character is inadmissible to show the
defendant’s state of mind unless two threshold require-
ments are met: (1) the defendant has laid a proper
foundation ‘‘by adducing evidence that he acted in self-
defense’’; and (2) the defendant has laid a proper foun-
dation by ‘‘adducing evidence that he . . . was aware
of the victim’s violent character.’’8 Id. Otherwise, the
proffered evidence is irrelevant. In the present case,
the defendant never established an evidentiary founda-
tion for his self-defense claim. The court, therefore, did
not abuse its discretion by precluding the unidentified
woman’s purported statement as irrelevant.
2
The defendant also claims that the court abused its
discretion by precluding the unidentified woman’s
statement to demonstrate his state of mind. We
disagree.
In the present case, the defendant failed to lay the
foundation necessary to admit the woman’s statement.
The defendant presented no evidence that he knew the
victim or knew of his violent propensities, if any. The
defendant’s claim that the woman’s statement was rele-
vant to determine his state of mind at the time he fired
the gun at the victim falls short for a number of reasons.
First, McAllister told the police that he heard the wom-
an’s statement after the victim had left the area in front
of the defendant’s porch, not before the defendant
retrieved his gun. Second, although McAllister heard
the woman’s statement, the defendant presented no
evidence that he himself heard it.9 More to the point,
without evidence that the defendant heard the state-
ment, the statement is irrelevant to his motive. Prof-
fered evidence of this nature is irrelevant to a defen-
dant’s state of mind at the time of a shooting when the
defendant has failed to offer any testimony that the
evidence influenced his assessment of the need to use
deadly physical force against the victim. See State v.
Harrison, 32 Conn. App. 687, 702, 631 A.2d 324, cert.
denied, 227 Conn. 932, 632 A.2d 708 (1993). The court,
therefore, did not abuse its discretion by sustaining
the state’s objection to McAllister’s testifying about the
woman’s statement.10
B
The defendant claims that the court violated his right
to present a defense by excluding from evidence the
toxicology report, which revealed the presence of PCP
in the victim’s body at the time of death. We do not
agree.
The following facts are relevant to our analysis of
this claim. At trial, Williams testified about the autopsy
she performed on the victim’s body. As part of the
autopsy procedure, Williams collected fluid specimens
from the body and sent them to an independent labora-
tory for evaluation. The independent laboratory, ‘‘NMS
Labs,’’ provided the Office of the Chief Medical Exam-
iner with a report of its analysis. The defendant sought
to have the toxicology report admitted into evidence
as a business record of the medical examiner’s office.
The state objected and conducted the following voir
dire of Williams.
‘‘[The Prosecutor]: Now, with respect to the findings
that you discussed in your—from your autopsy with—
with respect to the cause and manner of death, did the
NMS lab report have any—any impact on your conclu-
sions with respect to the cause and manner of the death
of [the victim]?
‘‘[Williams]: It did not.
‘‘[The Prosecutor]: So this postmortem toxicology is
done but yet it would not impact—it did not impact
your findings in any way of the autopsy report that
you did—the six page autopsy report that you drafted
following your autopsy?
‘‘[Williams]: That is correct.
‘‘[The Prosecutor]: And would it be fair to say that
your conclusions with respect to the manner and cause
of death were made prior to even getting back the
toxicology from the NMS Lab?
‘‘[Williams]: That is true.’’
The state argued that the toxicology report was not
relevant because it had no impact on the conclusions
Williams drew with respect to the manner and cause of
the victim’s death. Furthermore, the toxicology report
contained commentary about the effects a certain drug
may have on a person. The defense did not disclose an
expert to testify or to explain how people behave or
act under the influence of PCP or how the victim acted
or could have acted under the influence of PCP. More-
over, the state argued that the report was prejudicial
evidence of the victim’s character regarding a drug that
he ingested prior to his death and was not relevant.
The court questioned Williams as to whether the toxi-
cology report had any bearing on her conclusion ‘‘in
terms of this particular instance being a homicide.’’
Williams stated that it did not. Thereafter, the court
ruled that because the toxicology report had no bearing
on Williams’ conclusion, it was not ‘‘necessarily rele-
vant.’’ The court agreed with the state with respect to
the extrinsic drug information contained in the toxicol-
ogy report.
The defendant asked the court to reconsider its rul-
ing, contending that the toxicology report was relevant
because the victim appeared to McAllister to have
‘‘crazy eyes’’ and was intoxicated or was on crack or
high at the time of the crime. In other words, the report
was relevant to the victim’s condition at that time and
the jury should be permitted to review the report and
make its own determinations. The court declined to
alter its ruling, noting that the extraneous evidence in
the toxicology report and the fact that the victim may
have been high had no bearing on Williams’ conclusion
that this case was a homicide and, therefore, the toxicol-
ogy report was irrelevant. Thereafter, in response to
voir dire by defense counsel, Williams testified that she
was unable to say how the victim was acting prior
to his death on the basis of the PCP numbers in the
toxicology report. In fact, she did not consider the toxi-
cology report because the obvious cause of the victim’s
death was gunshot wounds to the victim’s chest and
leg, which caused him to bleed out.
In ruling, the court cited State v. Wilson-Bey, 21 Conn.
App. 162, 168, 572 A.2d 372, cert. denied, 215 Conn. 806,
576 A.2d 537 (1990), noting that a toxicology report
may be admitted when it is relevant for purposes of
medical diagnosis and treatment.11 Williams testified
that she did not consider the toxicology report as it
was not relevant to her determination of the cause or
manner of the victim’s death.
On appeal, the defendant argues that Wilson-Bey is
inconsistent with State v. Fritz, 204 Conn. 156, 168, 527
A.2d 1157 (1987). We disagree with the defendant as
the facts are distinguishable. In Fritz, portions of the
decedent’s autopsy report were placed into evidence
to demonstrate the amount of Demerol that was in her
body at the time of a fatal, one car automobile crash.
Id., 167. The amount of Demerol found in the decedent’s
body was ten times the normal therapeutic level. Id.,
159. The evidence was relevant to demonstrate that the
defendant physician had illegally prescribed medica-
tions. Id., 158. Our Supreme Court agreed with the trial
court that the results of the decedent’s autopsy were
relevant to the charges against the defendant physician
who prescribed the medication. Id., 169.
There is no similar causal relationship between the
evidence of PCP in the victim’s body and the defendant’s
having shot him. The defendant argues on appeal that
‘‘the toxicology report tended to support the . . . con-
tention that [the victim] was under the influence of
PCP, which was relevant to both self-defense and spe-
cific intent. It did not need to be relevant to the cause
of death.’’ At trial, the defendant failed to explain why
the presence of PCP in the victim’s body was relevant
to self-defense and his intent or otherwise lay a founda-
tion for the admission of the toxicology report.
On appeal, the defendant argues that the evidence
of the PCP in the victim’s body would support the exis-
tence and reasonableness of the defendant’s fear of
him. Although McAllister testified that the victim was
acting ‘‘weird’’ and appeared to be high when he
approached the defendant’s porch, which caused
McAllister to be nervous, there is no evidence that the
defendant feared the victim. In fact, he remained on
the porch until the victim moved on down the street.
The victim did not say anything to anyone and did not
touch anyone. There is no evidence that the victim
threatened anyone. Although the defendant was not
threatened or harmed by the victim, who ‘‘acted weird’’
in front of his porch, after the victim moved on, the
defendant went into his home, got a gun, followed the
victim down the street, and shot him. There is no evi-
dence that the victim confronted the defendant with
the imminent use of deadly force from which the jury
reasonably could infer that the defendant acted in self-
defense. The state’s evidence was sufficient to disprove
self-defense beyond a reasonable doubt. See State v.
Pauling, 102 Conn. App. 556, 571–72, 925 A.2d 1200
(state’s burden to disprove self-defense), cert. denied,
284 Conn. 924, 933 A.2d 727 (2007). The court, therefore,
properly excluded the toxicology report from evidence.
For the foregoing reasons,12 we conclude that the
court did not abuse its discretion with respect to its
evidentiary rulings and, therefore, did not violate the
defendant’s constitutional right to present a defense.
II
The defendant claims that the trial court violated his
right to due process by refusing to give the jury an
instruction on self-defense. We disagree.
Following the close of evidence, the court e-mailed
its proposed jury charge to counsel and requested that
they respond by return e-mail. In his response, counsel
for the defendant requested that the court instruct the
jury on self-defense. Thereafter, the court held an on
the record charge conference during which defense
counsel argued that a self-defense charge was war-
ranted on the basis of McAllister’s testimony that the
victim and the defendant ‘‘locked eyes’’ and appeared
to have an exchange of words before the defendant
shot the victim. The prosecutor disagreed, stating that
there was no evidence to warrant such an instruction
and that ‘‘locking eyes, acting weird, going in a pocket,
maybe being high, all things that simply without more
do not constitute the need for a self-defense request.’’
The court ruled that it would not instruct on self-defense
because the facts presented to the jury would not sup-
port a self-defense charge.13
‘‘[T]he fair opportunity to establish a defense is a
fundamental element of due process of law . . . . This
fundamental constitutional right includes proper jury
instructions on the elements of self-defense so that the
jury may ascertain whether the state has met its burden
of proving beyond a reasonable doubt that the assault
was not justified. . . . Thus, [i]f the defendant asserts
[self-defense] and the evidence indicates the availability
of that defense, such a charge is obligatory and the
defendant is entitled, as a matter of law, to [an] . . .
instruction [on self-defense]. . . . Before an instruc-
tion is warranted, however, [a] defendant bears the
initial burden of producing sufficient evidence to inject
self-defense into the case. . . . To meet that burden,
the evidence adduced at trial, whether by the state or
the defense, must be sufficient [if credited by the jury]
to raise a reasonable doubt in the mind of a rational
juror as to whether the defendant acted in self-defense.
. . . This burden is slight, however, and may be satis-
fied if there is any foundation in the evidence [for the
defendant’s claim], no matter how weak or incredible
. . . .’’ (Internal quotation marks omitted.) State v. Best,
168 Conn. App. 675, 686, 146 A.3d 1020 (2016).
To raise a claim of self-defense sufficiently to warrant
an instruction, ‘‘a defendant must introduce evidence
that the defendant reasonably believed his adversary’s
unlawful violence to be imminent or immediate. . . .
Under General Statutes § 53a-19 (a), a person can, under
appropriate circumstances, justifiably exercise
repeated deadly force if he reasonably believes both
that his attacker is using or about to use deadly force
against him and that deadly force is necessary to repel
such attack. . . . The Connecticut test for the degree
of force in self-defense is a subjective-objective one.
The jury must view the situation from the perspective
of the defendant. Section 53a-19 (a) requires, however,
that the defendant’s belief ultimately must be found to
be reasonable. . . . Moreover, the evidence must be
such that the jury must not have to resort to speculation
in order to find that the defendant acted in justifiable
self-defense.’’ (Citations omitted; internal quotation
marks omitted.) State v. Lewis, 245 Conn. 779, 811, 717
A.2d 1140 (1998). ‘‘In determining whether the defen-
dant is entitled to an instruction on self-defense . . .
we must view the evidence most favorably to giving
such an instruction.’’ Id., 812.
Viewed in the light most favorable to the defendant,
the record discloses that McAllister was nervous and
fearful of the victim when he appeared in front of the
defendant’s porch. He, therefore, retreated into the
defendant’s house with Romy and Kahdeem. There was
no evidence that the defendant himself was fearful of
the victim. The defendant remained on his porch even
though, as McAllister testified, the victim appeared to
be high, was acting weirdly, and put his hand in his
pocket. In essence, the defendant is asking us to attri-
bute McAllister’s fear of the victim to him. This we
decline to do. Moreover, after the victim took McAllis-
ter’s soda from the porch, he walked away without
threatening or harming the defendant. There is no evi-
dence of any conversation between the two of them at
that time.
After the victim left the vicinity of the defendant’s
porch, McAllister exited the defendant’s home
intending to go to his own home on Pearl Street.
Although the victim was gone, the defendant went into
his home and returned with a gun. He caught up with
McAllister and the others, as they all walked behind
the victim as he traveled from East Main Street onto
Pearl Street. The defendant called, ‘‘Yo’’ to the victim,
who turned and ‘‘locked eyes’’ with him. There was an
exchange of words, but what was said is not known.
There was no evidence that the victim moved toward
the defendant, made a threatening gesture, or voiced a
verbal threat indicative of immediate or imminent harm.
The defendant fired three shots at the victim.14 The
trial court concluded that locking eyes and exchanging
words were not sufficient to warrant a charge on self-
defense. On the basis of our review of the evidence,
we agree with the court, concluding that no reasonable
juror would find that the defendant believed that he
was in imminent or immediate danger so as to warrant
the use of deadly force. Although the bar for giving
such an instruction is admittedly very low, given the
facts of this case, we conclude that the court did not
violate the defendant’s right to due process by failing
to give a self-defense instruction.
III
The defendant claims that the court improperly
refused to sanction the state for its late disclosure of
the murder weapon and related materials, namely, the
hacksaw and the file, and thereby denied him the right
to due process. He therefore claims that he is entitled
to a new trial or to have the charges against him dis-
missed. We disagree.
The following facts are relevant to the defendant’s
claim. A public defender was appointed to represent
the defendant when he was arraigned on October 14,
2014. On March 11, 2015, the defendant asked the state
to disclose any tangible objects, documents, and reports
or statements of experts, including the results of physi-
cal examinations or scientific tests that it intended to
offer into evidence during its case-in-chief or that were
material to the defendant’s case. The case was placed
on the trial list on September 29, 2015. New counsel
appeared for the defendant on October 24, 2016, and
filed a motion for a speedy trial on February 21, 2017.
The speedy trial motion was granted, and jury selection
commenced on February 27, 2017. Jurors were
informed that evidence would begin on March 20, 2017,
and conclude by the end of March.
On March 7, 2017, the state disclosed that it intended
to offer the murder weapon (gun) into evidence. The
gun had been seized by the Bridgeport police in connec-
tion with a robbery that occurred on December 12,
2014.15 The state also supplemented its disclosure with
a report concerning the firearms evidence that was
dated December 15, 2014, which had been prepared by
Marshall Robinson, a firearms expert. Robinson’s report
stated that the shell casings recovered from the crime
scene and the bullet and fragment recovered from the
victim’s body had been fired in the gun used by the
defendant. On March 9, 2017, the state further supple-
mented its disclosure by producing a report authored
by Robinson dated October 20, 2014.16
On March 13, 2017, the defendant filed a motion for
sanctions, contending that he was prejudiced by the
state’s late disclosure in that he did not have enough
time to prepare his defense before the presentation of
evidence commenced. He argued that a continuance
was an improper remedy because a continuance would
violate his right to a speedy trial and force him to choose
between his constitutional rights to due process and to
a speedy trial. He asked the court to dismiss the charges
against him or to prohibit the state from putting the
gun and related evidence before the jury.
The court heard argument on the motion for sanc-
tions on March 17, 2017. Defense counsel represented
that the robbery defendant was prosecuted by the same
office of the state’s attorney prosecuting the defendant.
The robbery defendant pleaded guilty and was sen-
tenced in September, 2015, and the gun was then avail-
able for inspection in the present case. See footnote 15
of this opinion. The defendant contended that the late
disclosure constituted a surprise, as he previously had
been advised that the state did not have the murder
weapon or ballistics tests, and that there was no causal
connection between the .22 caliber bullets found during
the autopsy and the nine millimeter shell casings recov-
ered at the scene. He claimed that, as a result of the
late disclosure, the case against him was different from
the one for which he had prepared. Moreover, during
pretrial negotiations, he did not have the benefit of
knowing all of the evidence against him.17
The prosecutor argued that the late disclosure was
not the result of bad faith. Robinson’s report was not
in the state’s file and that, as soon as the prosecutor
became aware of it, she disclosed it to the defendant
and made Robinson available to him. The defendant
did not take advantage of speaking with Robinson. In
addition, the state was at a similar disadvantage
because it too had just learned that the gun was
available.
The court ruled that, although the state’s disclosure
of the gun was late and not the best practice, it did
not constitute bad faith.18 With respect to Robinson’s
reports, the court found that the disclosure was not
late and that the defendant could address the changes
Robinson made in them when he testified. In addition,
the court found that Robinson and the firearms evi-
dence had been available to the defendant for at least
nine days, but that he had elected not to examine them.
Nonetheless, the court stated that it was willing to grant
the defendant a continuance to have an expert examine
the gun. The court also found that the defendant’s
defense was not prejudiced by the late disclosure. The
court declined to issue a blanket ruling excluding the
firearms evidence on the basis of late disclosure, but
it stated that it would permit the defendant to raise
specific objections during trial. The court, however,
recognized that the late disclosure of the gun had preju-
diced the defendant with respect to plea negotiations
and offered him the option to continue plea negotiations
before evidence began.
At trial, Robinson testified that the .22 caliber shell
casings that the police found at the scene were fired
in the Marlin .22 caliber sawed-off shotgun that the
state put into evidence. He also testified that the tool
marks on the barrel of the gun could have been made
by the file found in the defendant’s bedroom or ‘‘another
one like it.’’ The state proffered the hacksaw and file
that the police found in the defendant’s bedroom into
evidence. The defendant objected, arguing that the tools
had no probative value because it was speculative
whether they were used to alter the gun.19 The court
overruled the defendant’s objection, stating that the
tools were relevant because Robinson testified that the
murder weapon was a sawed-off gun. Following the
verdict, the defendant filed a motion for a new trial on
the ground that the state’s late disclosure and the court’s
failure to exclude the gun and tools from evidence
denied him due process, but declined the court’s offer
to request additional time to look at the matter. The
court denied the motion.20
On appeal, the defendant raises numerous arguments,
claiming that the court’s denial of his motion for sanc-
tions and his motion for a new trial rested on legal error
and clearly erroneous factual findings resulting in abuse
of discretion because the court’s decision was predi-
cated on improper and irrelevant factors. More specifi-
cally, he argues that two of the court’s factual findings
are clearly erroneous, namely, (1) the defendant
declined to have his own expert examine the evidence
for tactical reasons,21 and (2) there is no factual basis
for the court to have rejected counsel’s representation
that the ‘‘defense does not have adequate time to prop-
erly prepare his defense for the March 20, 2017 trial
date.’’ (Internal quotation marks omitted.) With respect
to his tactical decision not to retain an expert, the defen-
dant argues that he did not seek a continuance because
it would have compromised his right to a speedy trial.
As to the adequacy of time to retain an expert, the
defendant contends that the court merely assumed that
there was adequate time to address the late disclosure
without ascertaining whether the defendant could
retain an expert in the required time, develop a legal
strategy to address the validity of Robinson’s conclu-
sions, and reformulate a theory of defense.22
The defendant also contends that the court’s decision
not to impose sanctions was predicated on ‘‘irrelevant
and improper factors,’’ citing State v. Peeler, 271 Conn.
338, 416, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845,
126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). He claims that
the court determined that there was no bad faith on
the part of the state without ascertaining why the office
of the state’s attorney does not employ procedures to
ensure timely discovery disclosure. In addition, the
court failed to consider relevant circumstances when
it assumed that the defendant could obtain an expert
witness within the time frame of trial. For example,
he posits that, at the time of the state’s supplemental
disclosure, the public defender’s office no longer was
available to provide financial support for an expert
because the defendant had secured private counsel.
The court also did not consider the effect a continuance
might have on the members of the jury who were told
the trial would be over by the end of March.
In response, the state acknowledges that it should
have taken steps to learn of the gun and disclose it to
the defendant in a more timely manner. We agree that
the state should have disclosed the gun timelier, but
we also agree with the state that the court reasonably
exercised its discretion by denying the defendant’s
request for sanctions because the firearms evidence
was disclosed during jury selection and before Rob-
inson testified. The state, therefore, argues that the
defendant was not prejudiced.
We first set forth the relevant law and standard of
review. ‘‘Practice Book § 40-5 gives broad discretion to
the trial judge to fashion an appropriate remedy for
noncompliance with discovery. . . . Generally, [t]he
primary purpose of a sanction for violation of a discov-
ery order is to ensure that the defendant’s rights are
protected, not to exact punishment on the state for its
allegedly improper conduct. As [our Supreme Court
has] indicated, the formulation of an appropriate sanc-
tion is a matter within the sound discretion of the trial
court. . . . In determining what sanction is appro-
priate for failure to comply with court ordered discov-
ery, the trial court should consider the reason why
disclosure was not made, the extent of prejudice, if
any, to the opposing party, the feasibility of rectifying
that prejudice by a continuance, and any other relevant
circumstances. . . . Suppression of relevant, material
and otherwise admissible evidence is a severe sanction
which should not be invoked lightly.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Respass,
256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534 U.S.
1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).
‘‘The purpose of criminal discovery is to prevent sur-
prise and to afford the parties a reasonable opportunity
to prepare for trial. To achieve these goals and to assure
compliance with the rules, the trial court must impose
an appropriate sanction for failure to comply. In
determining what sanction is appropriate, the trial court
should consider the reason why disclosure was not
made, the extent of prejudice, if any, to the opposing
party, the feasibility of rectifying that prejudice by a
continuance, and any other relevant circumstances.’’
State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980).
In the present case, the court found that the state’s
late disclosure was not the result of bad faith but the
failure of the police department’s records to be placed
in the defendant’s criminal file in the office of the state’s
attorney. The defendant points to no evidence in the
record indicating bad faith on the part of the state and,
significantly, the defendant failed to take up the court’s
offer to continue the case. As soon as the prosecutor
found the records and learned of the gun, she disclosed
them to the defendant. The state made Robinson avail-
able to the defense, as the court ordered it to do. The
court also gave the defense a reasonable opportunity
to meet with Robinson, but defense counsel declined
to do so.23 The defendant also declined to consult with
his own expert. Most importantly, the court offered the
defendant the opportunity to return to plea negotia-
tions. The defendant declined to do so. As to the incon-
sistencies in Robinson’s reports regarding the size of
the shell casings, the defendant was given a full opportu-
nity to cross-examine him at trial. It was for the jury
to determine the facts.
Despite the defendant’s constitutional claim, he has
failed to persuade us that he was meaningfully preju-
diced by the late disclosure of the gun given the facts
of the case against him. The defendant’s theory of
defense was that he shot the victim in self-defense. He
failed to explain how an expert’s examination of the
gun might have affected that defense. The question for
the jury to decide was the defendant’s state of mind
when he shot the gun at the victim. The state presented
a strong case with eyewitness testimony that the defen-
dant shot the victim and that the victim died as a result
of having been shot. We conclude, therefore, that the
court did not abuse its discretion by failing to sanction
the state for its late disclosure of the gun and, therefore,
did not deprive the defendant of due process or a fair
trial.24 The court, therefore, properly denied the defen-
dant’s motion for a new trial or to dismiss the charges.
IV
The defendant’s final claim is that he is entitled to
a new trial on the basis of prosecutorial impropriety
committed during closing argument that violated his
right to due process. We agree, as the state concedes,
that one of the prosecutor’s statements was improper
but conclude that the cumulative effect of the prosecu-
tor’s closing argument did not deprive the defendant
of a fair trial and that a new trial is not warranted.
The defendant claims that the prosecutor was guilty
of impropriety when she (1) argued the ‘‘defendant mur-
dered [the victim] in cold blood,’’ (2) argued ‘‘[w]e can’t
make sense out of a senseless act of murder, but what
we can do is hold people accountable,’’ (3) repeatedly
asked the jury to hold the defendant ‘‘accountable for
this senseless murder,’’ (4) labeled the case an ‘‘Ameri-
can tragedy’’ and asked the jury to consider that this
‘‘senseless loss of life’’ should not occur in Bridgeport or
surrounding towns, and (5) argued facts not in evidence.
Despite raising numerous claims of prosecutorial
impropriety on appeal, he objected only to the prosecu-
tor’s argument of facts not in evidence at trial.
We review ‘‘claims of prosecutorial impropriety
under a two step analytical process. We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to a
fair trial.’’ (Internal quotation marks omitted.) State v.
Elmer G., 176 Conn. App. 343, 363, 170 A.3d 749 (2017),
aff’d, 333 Conn. 176, 214 A.3d 852 (2019). ‘‘Whether that
impropriety was harmful and thus caused or contrib-
uted to a due process violation involves a separate and
distinct inquiry.’’ State v. Fauci, 282 Conn. 23, 32, 917
A.2d 978 (2007).
‘‘[I]n analyzing [harm], we ask whether the prosecu-
tor’s conduct so infected the trial with unfairness as to
make the resulting conviction a denial of due process.
. . . We do not, however, focus only on the conduct
of the state’s attorney. The fairness of the trial and not
the culpability of the prosecutor is the standard for
analyzing the constitutional due process claims of crimi-
nal defendants alleging prosecutorial [impropriety].
. . .
‘‘To determine whether . . . [an] impropriety
deprived the defendant of a fair trial, we must examine
it under each of the Williams factors.25. . . Specifi-
cally, we must determine whether (1) the impropriety
was invited by the defense, (2) the impropriety was
severe, (3) the impropriety was frequent, (4) the impro-
priety was central to a critical issue in the case, (5) the
impropriety was cured or ameliorated by a specific jury
charge, and (6) the state’s case against the defendant
was weak due to a lack of physical evidence.’’ (Citations
omitted; footnote added; internal quotation marks omit-
ted.) Id., 50–51.
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . [B]ecause closing arguments often have a
rough and tumble quality about them, some leeway
must be afforded to the advocates in offering arguments
to the jury in final argument. [I]n addressing the jury,
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument.’’ (Internal quotation marks
omitted.) State v. Elias V., 168 Conn. App. 321, 347,
147 A.3d 1102, cert. denied, 323 Conn. 938, 151 A.3d
386 (2016).
‘‘[T]he prosecutor, as a public official seeking impar-
tial justice on behalf of the people of this state, has a
heightened duty to avoid argument . . . that strays
from the evidence or diverts the jury’s attention from
the facts of the case. . . . Nonethless, [our Supreme
Court has] recognized that the privilege of counsel in
addressing the jury should not be too closely narrowed
or unduly hampered . . . .’’ (Citation omitted; internal
quotation marks omitted.) State v. Albino, 312 Conn.
763, 772, 97 A.3d 478 (2014). We now address the defen-
dant’s claims of prosecutorial impropriety.
A
Prosecutorial Impropriety
1
The prosecutor commenced her final argument as
follows: ‘‘You cannot make sense out of senseless vio-
lence and that’s what this case is about. You simply
cannot make sense out of senseless violence. [The vic-
tim] was a twenty-four year old man who was walking
down a Bridgeport street in the early afternoon of Octo-
ber 13, 2014, when he was senselessly and fatally
wounded by gunshots in the area of Pearl and Brooks
Streets. The facts during this trial have shown that the
defendant murdered [the victim] in cold blood and left
him to bleed out in the middle of the street.’’ (Emphasis
added.) The defendant claims that the words ‘‘murdered
the victim in cold blood’’ were improper because the
court gave a lesser included offense charge of man-
slaughter at the state’s request.
In a divided opinion by our Supreme Court in State
v. Albino, supra, 312 Conn. 774, the majority concluded
that the prosecutor’s ‘‘gratuitous comments about the
defendant ‘executing’ [the victim] and committing ‘mur-
der in cold blood’ were improper, considering that the
defendant’s evidence was deemed sufficient to warrant
jury instructions on lesser included offenses inconsis-
tent with a wholly unprovoked act of brutality that has
been deemed by courts to justify the use of such terms.’’
In the present case, at the state’s request, the court
gave a lesser included instruction, thus bringing the
Albino rule into play. On appeal, the state, therefore,
concedes that the prosecutor’s ‘‘in cold blood’’ state-
ment was improper. Notwithstanding the apparently
brutal and unprovoked nature of the murder in this
case, Albino compels us to conclude that the prosecutor
committed an impropriety by arguing that the defendant
murdered the victim in cold blood.26 The jury reasonably
could have inferred that the defendant’s shooting the
victim ‘‘was a wholly unprovoked act of brutality’’; State
v. Albino, supra, 774; even though the jury had the
option of finding that the defendant did not have the
intent to murder the victim.
2
The defendant also claims that the following portions
of the prosecutor’s final argument were improper. The
prosecutor argued ‘‘[w]e can’t make sense out of a
senseless act of murder, but what we can do is hold
people accountable,’’ and repeated the words ‘‘account-
able’’ and ‘‘this senseless murder’’ elsewhere in her argu-
ment. The prosecutor labeled the case an ‘‘American
tragedy’’ and stated that the senseless loss of life should
not occur in Bridgeport or surrounding towns. The
defendant claims that the prosecutor’s argument drew
the jury’s attention from a dispassionate examination
of the evidence of specific intent. We disagree that the
prosecutor’s argument was improper.
When reviewing claims of prosecutorial impropriety,
we are mindful ‘‘of the unique responsibilities of the
prosecutor in our judicial system. A prosecutor is not
only an officer of the court, like every other attorney,
but is also a high public officer, representing the people
of the [s]tate . . . . By reason of his [or her] office,
[the [prosecutor] usually exercises great influence [on]
jurors. [The prosecutor’s] conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he [or she] repre-
sents the public interest, which demands no victim and
asks no conviction through the aid of passion, prejudice
or resentment. . . . That is not to say, however, that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal devices is simply fair argument. . . . Indeed, this
court give[s] the jury the credit of being able to differen-
tiate between argument on the evidence and attempts
to persuade them 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.
The [prosecutor] should not be put in a rhetorical strait-
jacket of always using the passive voice, or continually
emphasizing that [she] is simply saying I submit to you
that this is what the evidence shows, or the like. . . .
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . When making closing arguments to the
jury, [however, counsel] 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.’’ (Citation omitted; internal quotation marks
omitted.) State v. Fasanelli, 163 Conn. App. 170, 174–76,
133 A.3d 921 (2016).
Moreover, ‘‘[a] prosecutor is not precluded from
using descriptive language that portrays the nature and
enormity of the crime when supported by the evidence.
Thus, to the extent the prosecutor’s language appealed
to the jurors’ emotions, it did so because of the nature
of the crime and not because of the terminology the
prosecutor used to get [her] point across.’’ State v.
Andrews, 313 Conn. 266, 301, 96 A.3d 1199 (2014).
Given the evidence and the standard by which we
assess the final arguments of a prosecutor, we conclude
that the prosecutor’s argument was not improper when
she labeled the case a senseless American tragedy. Any
jury reasonably could conclude that the shooting death
of a twenty-four year old man by a teenager, for no
discernible reason, is a tragedy for the victim and the
defendant, as well as their families and friends. The
fact that the shooting occurred at midday on a street
corner in the greater community from which the jury
was selected was tragic, as well. The victim’s death
certainly was senseless as the reason the defendant
shot him is unexplained. The complained of portion of
the prosecutor’s argument was grounded in the evi-
dence and, therefore, not improper.
B
Williams Analysis
We focus on whether the prosecutor’s argument that
the defendant committed murder in cold blood violated
the defendant’s right to a fair trial. We conclude that
the prosecutor’s comment did not violate the defen-
dant’s right to a fair trial.
‘‘[O]ur determination of whether any improper con-
duct by the [prosecutor] violated the defendant’s fair
trial rights is predicated on factors set forth in State v.
Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)],
with due consideration of whether that [impropriety]
was objected to at trial. . . . These factors include: [1]
the extent to which the [impropriety] was invited by
defense conduct or argument . . . [2] the severity of
the [impropriety] . . . [3] the frequency of the [impro-
priety] . . . [4] the centrality of the [impropriety] to
the critical issues in the case . . . [5] the strength of the
curative measures adopted . . . [6] and the strength
of the state’s case. . . . The question of whether the
defendant has been prejudiced by prosecutorial [impro-
priety] . . . depends on whether there is a reasonable
likelihood that the jury’s verdict would have been differ-
ent absent the sum total of the improprieties. . . .
Under the Williams general due process standard, the
defendant has the burden to show both that the prosecu-
tor’s conduct was improper and that it caused prejudice
to his defense.’’ (Citations omitted; internal quotation
marks omitted.) State v. Papantoniou, 185 Conn. App.
93, 110–11, 196 A.3d 839, cert. denied, 330 Conn. 948,
196 A.3d 326 (2018).
It is significant that, not only did the defendant fail
to object to the prosecutor’s use of the phrase ‘‘in cold
blood,’’ but also in his closing argument, defense coun-
sel stated: ‘‘So what intent, what—what reason does
someone who just wakes up at 11:30 in the morning
have to go out and . . . kill someone in cold blood in
the middle of the street?’’ Defense counsel could not
have perceived the prosecutor’s use of the phrase ‘‘in
cold blood’’ to be prejudicial to the defendant or severe,
if he himself used it in his final argument. The defendant
did not ask the court to take any curative measures in
light of the prosecutor’s use of the phrase, ‘‘in cold
blood.’’ In its general instructions, the court stated, in
part, that the arguments of counsel are not evidence and
that the jurors must base their verdict on the evidence.
The prosecutor’s use of the phrase ‘‘in cold blood’’
was not invited by the defense, and she stated it only
once. The prosecutor’s use of the phrase was not central
to the case. The defendant’s intent when he shot the
victim was central to the case. Finally, the state’s case
against the defendant was strong. McAllister was an
eyewitness to the shooting and testified that the defen-
dant shot at the victim three times. We conclude, there-
fore, that the defendant was not deprived of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Williams’ report, which was placed into evidence, stated that the victim
suffered a penetrating gunshot wound of the chest. The bullet entered ‘‘the
left side of the [victim’s] chest, [seventeen inches] below the top of the head
and [six inches] to the left of midline . . . . The wound path extends
rightward, backward and slightly downward through the skin, soft tissue
and muscle of the left chest, passing into the chest cavity below the [fourth]
left rib, passing through both lobes of the left lung, including passage through
the hilar area, and into the lateral [eighth] thoracic vertebral body.’’
Williams testified, ‘‘So one bullet entered into the front of the body through
the left upper chest.’’
2
McAllister was the only eyewitness who testified to the shooting. The
jury, however, was able to view surveillance videos that depicted the defen-
dant walking behind the victim toward the crime scene and running from
it. McAllister testified that he did not remember everything that he had seen
more than two years earlier. Our review of the transcript discloses that
McAllister’s testimony was at times inconsistent, but appellate courts do
not find facts. See State v. Copeland, 205 Conn. 201, 208 n.3, 530 A.2d 603
(1987). It is the function of the jury to examine the evidence and to make
factual and credibility determinations. See State v. Livingston, 22 Conn.
App. 216, 228, 577 A.2d 734, cert. denied, 216 Conn. 812, 580 A.2d 63 (1990).
3
Phencyclidine, an hallucinogen, is commonly referred to as PCP. State
v. Benefield, 153 Conn. App. 691, 697, 103 A.3d 990 (2014), cert. denied, 315
Conn. 913, 106 A.3d 305, cert. denied, U.S. , 135 S. Ct. 2386, 192 L.
Ed. 2d 172 (2015).
4
Section 4-3 of the Connecticut Code of Evidence provides that ‘‘[r]elevant
evidence may be excluded if its probative value is outweighed by the danger
of unfair prejudice or surprise, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time or needless presenta-
tion of cumulative evidence.’’
5
The defendant subsequently filed a motion for articulation. The court
articulated that it sustained the state’s objection because defense counsel
did not ask to be heard outside the presence of the jury or to make an offer
of proof and did not advance an argument that the statement fit within one
of the exceptions to the hearsay rule or articulate the basis of its relevancy.
6
Connecticut Code of Evidence § 4-4 (a) provides in relevant part: ‘‘Char-
acter evidence generally. Evidence of a trait of character of a person is
inadmissible for the purpose of proving that the person acted in conformity
with the character trait on a particular occasion, except the following is
admissible:
‘‘(1) Character of the accused. Evidence of a specific trait of character
of the accused relevant to an element of the crime charged offered by
an accused, or by the prosecution to rebut such evidence introduced by
the accused.
‘‘(2) Character of the victim in a homicide or criminal assault case. Evi-
dence offered by an accused in a homicide or criminal assault case, after
laying a foundation that the accused acted in self-defense, of the violent
character of the victim to prove that the victim was the aggressor, or by
the prosecution to rebut such evidence introduced by the accused. . . .’’
7
In this regard, we find it significant that the defendant complied with
the evidentiary requirements, albeit unsuccessfully, when he attempted to
introduce evidence of the victim’s violent character, as reflected in the
record of his criminal convictions. In offering the victim’s criminal record,
the defendant proffered that the records were relevant to his claim of self-
defense, which distinguishes it from his earlier attempt to place the unidenti-
fied woman’s purported statement in evidence. In offering the criminal
record, the defendant represented that McAllister had testified that the
victim was acting in a manner in which the defendant and the victim locked
eyes and that is when the defendant shot the victim. In doing so, the defen-
dant attempted to satisfy the required evidentiary foundation. See footnote
6 of this opinion. The court, however, concluded that the evidence that the
victim and the defendant ‘‘locked eyes’’ was an insufficient foundation for
a claim of self-defense. The court, therefore, denied the defendant’s motion
to admit the victim’s criminal record.
8
Evidence of a victim’s violent character may be admitted, regardless of
whether the defendant knew of that character trait, if offered to prove that
the defendant acted in self-defense due to the victim’s initial aggression.
The evidence may be admitted if (1) the defendant lays a proper foundation
that he acted in self-defense, and (2) the evidence is introduced as reputation
or opinion testimony, or evidence of the victim’s conviction of crimes of
violence. See Conn. Code of Evid. § 4-4 (a) (2); State v. Smith, supra, 222
Conn. 17–18. In the present case, the defendant failed to present evidence
that he acted in self-defense, and the purported statement of the unidentified
woman was not one of the permitted forms of evidence.
9
In response to the state’s argument that there is no evidence that the
defendant heard the unidentified woman’s statement, the defendant argues
that the jury could have inferred that he heard it because McAllister testified
that ‘‘at the time of the crime she told us that . . . .’’ The state objected,
and McAllister was instructed not to say what the woman said. There is no
evidence as to whom ‘‘us’’ refers, and whether it included the defendant or
just McAllister, Romy, and Kahdeem, who were separated from the defendant
when he went into his home to get the gun. Just because McAllister heard
the woman’s statement does not mean the defendant heard it.
10
On appeal, the defendant also claims that the purported statement was
admissible as an excited utterance. The state claims that the defendant did
not preserve the claim at trial. During the pretrial hearing on the state’s
motion in limine with respect to the woman’s statement, however, the
defendant claimed that the woman’s statement was admissible as an excited
utterance. The court did not rule on the motion in limine at the time of the
hearing, saying it would wait and see how the evidence came in during trial.
The court instructed that, ‘‘if either side seeks to introduce something that
is subject to a pending motion, they need to do that initially outside the
presence of the jury. Just so that nobody is surprised by it and that I
can officially rule on everything appropriately.’’ During trial, the defendant
sought to introduce the woman’s statement through McAllister and the state
objected. The defendant failed to ask that the jury be excused so that he
could make an offer of proof.
11
The court stated that its ruling did not mean that the toxicology report
may not be relevant at some later time. The record does not disclose that the
defendant sought to place the toxicology report in evidence at a later time.
12
The defendant’s claim regarding the trial court’s alleged failure to admit
the toxicology report, which indicated that the victim had PCP in his system
at the time of his death, fails for the same reasons articulated in part I A 1
of this opinion.
13
The court also stated: ‘‘And I think that it should be clear, just so that
it is clear for the record, that self-defense was something that was discussed
. . . early on and throughout the course of this trial and it may have war-
ranted a self-defense charge had the evidence presented itself. It is just that
the way that the evidence came in and the case that the jury has now to
deliberate on, it is this court’s opinion that simply locking eyes is not suffi-
cient to warrant a charge on self-defense.’’
14
According to McAllister, the third shot struck the victim as he lay on
the ground. Williams’ autopsy tends to support McAllister’s testimony as
the fatal bullet entered the victim’s left chest and traveled to the right and
slightly downward. See footnote 1 of this opinion.
15
The Bridgeport police seized the gun in case number 141209. The defen-
dant in that case, Qashad Fields, pleaded guilty to the charges against him
and was sentenced in 2015. Apparently, information in Fields’ file and the
defendant’s file were not cross-referenced even though both cases were
handled in the same office of the state’s attorney.
16
In his original report, Robinson stated that the shell casings recovered
at the scene of the crime were nine millimeter casings; his revised report
stated that they were .22 caliber casings. Robinson testified that his field
notes indicated that the casings taken at the scene were .22 caliber casings
and the error in his report was a scrivener’s error. The court did not consider
the late disclosure of Robinson’s reports to be a discovery violation given
that the mistake in Robinson’s original report was ‘‘pretty clear’’ given ‘‘all
of the police reports had consistently indicated a .22 caliber. It was pretty
clear that [Robinson’s] report was in error in terms of the referencing of a
nine millimeter [shell casings] and that [Robinson] then went back and
authored a supplemental report to correct that error.’’
17
The state acknowledged that the murder weapon and related evidence
were not part of pretrial negotiations.
18
The court stated: ‘‘[B]ased upon what I have read, the reports of Marshall
Robinson, the arguments that we have had on this matter, make a finding
that while it may not certainly be the best practice in terms of how the
police departments are able to cross reference this information and make
sure that the state’s attorneys on the different files are aware of this informa-
tion, I am going to make a finding that there is no evidence of bad faith. . . .
‘‘[T]he state’s attorney, just like defense counsel, is an officer of the court,
the indication is that the state’s attorney, when she became assigned this
particular file, then went to the police department to review all the evidence
and at that moment was told that, in fact, the murder weapon had been
recovered in another arrest and then that information was then immediately
disclosed to the defense.’’
19
Lieutenant Christopher LaMaine could not confirm that the tools were
used to modify the gun. The police seized the tools because a witness stated
that the defendant had used a sawed-off gun to shoot the victim. The state
argued that the tools were relevant to demonstrate that the defendant had
access to them and conceded that the jury may give no weight to them.
20
In denying the defendant’s motion for a new trial, the court stated
that the state immediately provided full disclosure and made all witnesses
immediately available to the defense, including Robinson. Also, as the court
noted, ‘‘the defense chose not to meet with or have [Robinson] go over
the report or see the evidence, or go over the evidence with [Robinson].
Additionally, the defense chose not to ask for additional time, which this
court offered, in terms of the defendant’s desire to speak with another
expert of [his] own choosing or to provide the evidence to another expert,
because it was also part of this court’s ruling that the state had to, in fact,
provide the physical evidence to the extent that they had anything so that
that could be reviewed by [his] own expert to make sure that the police
department accommodated any need that the defendant had. And the defense
chose not to do that for what were tactical reasons.
‘‘And those reasons are within the defendant’s control. So, to say that the
late disclosure prohibited the defense from being able to avail itself of its
speedy trial rights and/or its rights to a fair trial, I think, is a mischaracteriza-
tion of what occurred. Certainly, the court was willing and indicated its
willingness to entertain a level of continuance on the trial for any need that
the defense had. The defense never asked for that and, therefore, the trial
continued with its course.
‘‘But again, because we were in jury selection the date certainly could
have been modified. And we’re not talking about months; we’re talking
about whatever was necessary. And the defense indicated no necessity for
continuance or for bringing in an expert on this issue.
‘‘I will also note for the record that one of the things that occurs is
obviously the finding of this evidence made the state’s case stronger as
opposed to weaker, and, as the defense is indicating, up until this point did
not necessarily know that the weapon had been found. And so this court
provided the opportunity for the defense to go back down to the pretrial
judge, Devlin, J., to then be able to discuss any offers that were on the
table at the time that the defendant chose to ask for a trial and a speedy
trial in this case.’’
21
In its brief, the state points out that the record discloses that defense
counsel made a tactical decision not to talk to Robinson. The following
colloquy took place before the presentation of evidence. Defense counsel
stated that, although the state made Robinson available to the defendant,
Robinson himself was not immediately available.
‘‘[Defense counsel]: I made phone calls to [Robinson], left him a message,
he did not return my phone calls, it was not until Monday the thirteenth
that he had called that I said, ‘Well, maybe we can talk on the fourteenth,’
so I just want to make sure that the window was not as large as . . . .
‘‘The Court: Okay.
‘‘[The Prosecutor]: Can I just respond to that though?
‘‘The Court: Yeah.
‘‘[The Prosecutor]: I just want the record to be clear that the state did
comply with the court’s orders with respect to [Robinson] and I was told
yesterday by counsel, ‘What is the point.’ So, he has not tried to talk to
[Robinson], I just want the record to be clear of that. He has made a decision,
a tactical decision apparently on his part, and that is all I am going to say.
Thank you.
‘‘The Court: All right, so, fair enough. So, what the—what you are both
saying is, however, that whether or not the ability to talk to [Robinson]
before the thirteenth or fourteenth, that even after having that ability on
the thirteenth or fourteenth, the defense has chosen not to pursue that area
of inquiry and has not met with or has not asked [Robinson] to review any
documents or had their own expert come in and analyze any of the docu-
ments. So, that is clear on the record.
‘‘All right, so, we will see everybody in chambers, and we are adjourned
until Monday for the beginning of evidence.’’
22
On appeal, tellingly, the defendant failed to explain how a firearms
expert could help him reformulate his theory of defense that he shot the
victim in self-defense. He speculates that the firearms expert might have
testified that, due to the modification of the gun, it no longer shot accurately
and that he did not aim the gun at the victim to kill him. He also failed to
explain how he would have known of the gun’s inaccuracy, if any.
23
Although the defendant argues on appeal that there was inadequate
time to consult with a firearms expert, he failed to contest the prosecutor’s
representation before the trial court that he did not consult with Robinson
or an expert for tactical reasons. See footnote 21 of this opinion.
24
The defendant also claims that State v. Festo, supra, 181 Conn. 265–66,
does not adequately protect his rights and that this court should reverse
his conviction pursuant to our supervisory powers. A reviewing court’s
supervisory powers are an ‘‘extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, while not rising to the level
of a constitutional violation, is nonetheless of utmost seriousness, not only
for the integrity of a particular trial but also for the perceived fairness of
the judicial system as a whole.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Coward, 292 Conn. 296, 315, 972 A.2d 691 (2009). Even
if this court had the power to overrule decisions of our Supreme Court,
which it does not; see State v. Smith, 107 Conn. App. 666, 684–85, 946 A.2d
319 (appellate court not at liberty to overrule decisions of Supreme Court),
cert. denied, 288 Conn. 902, 952 A.2d 811 (2008); the present case does not
present the type of extraordinary situation that our supervisory powers
may address.
In addition, the defendant claims that this court should order a new trial
because the reliability of firearm and tool mark identification evidence must
be established in a Porter hearing. See State v. Porter, 241 Conn. 57, 698
A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d
645 (1998). The record is inadequate for review of this claim as it was not
raised in the trial court. See State v. Medina, 170 Conn. App. 609, 613–14,
155 A.3d 285, cert. denied, 325 Conn. 914, 159 A.3d 231 (2017).
25
See State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).
26
In Albino, however, our Supreme Court did not issue a blanket rule
prohibiting a prosecutor from arguing that a defendant murdered a victim
‘‘in cold blood’’ but acknowledged that such an argument may be proper in
certain circumstances. It cited cases in which an in cold blood argument
was found to be proper, including Commonwealth v. Murphy, 442 Mass.
485, 496, 813 N.E.2d 820 (2004), in which the Supreme Judicial Court held
that a statement that the victims were murdered in cold blood was not
improper where the evidence permitted an inference that the murders were
unprovoked, senseless, and brutal. See State v. Albino, supra, 312 Conn.
775. Our Supreme Court also cited People v. Walton, Docket No. 259584,
2006 WL 2033999, *2 (Mich. App. July 20, 2006), for the proposition that
the prosecutor’s characterization of the offense as an execution was not
improper because it was clearly supported by evidence that the defendant
and his accomplices made the unarmed victims lie down on floor and then
shot them, and State v. Harris, 338 N.C. 211, 229, 449 S.E.2d 462 (1994),
for the proposition that at a trial for first degree murder involving calculated
armed robbery and unprovoked killing, it was not improper for the prosecu-
tor to refer to the defendant as a cold blooded murderer. State v. Albino,
supra, 775.