State v. O'Brien-Veader ( 2015 )

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STATE v. O’BRIEN-VEADER—CONCURRENCE
ESPINOSA, J., concurring. I agree with the majority
that the judgment of conviction should be affirmed. I
disagree, however, with the majority’s conclusion in
part I A 1 of its opinion and write separately because
I believe that, although the prosecutor’s reference to
the defendant, Matthew O’Brien-Veader, during cross-
examination as ‘‘a mean and nasty person who was
looking to kill somebody’’ may appear improper at first
blush, when placed in the context of the prosecutor’s
line of questioning, the statement was proper. I there-
fore concur in the judgment.
We generally recognize that ‘‘[a] prosecutor may not
ask a question or make a comment during cross-exami-
nation that suggests that the defendant has a bad char-
acter or propensity for criminal behavior.’’ State v.
Warholic, 278 Conn. 354, 389–90, 897 A.2d 569 (2006).
We also recognize, however, that when a prosecutor’s
potentially improper remarks are ambiguous, ‘‘a court
should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning
. . . .’’ Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94
S. Ct. 1868, 40 L. Ed. 2d 431 (1974). The majority, by
assuming that the only possible interpretation of the
prosecutor’s comment was that it suggested that the
defendant had a bad character or propensity for crimi-
nal behavior, does not take into account the context
of the comment and, as a result, overlooks its ambigu-
ous nature.
Placed within its proper context, the prosecutor’s
description of the defendant as ‘‘mean and nasty’’ was
not improper. The prosecutor’s comment was a valid
attempt to impeach the credibility of the defense’s psy-
chiatric expert, Seth Feuerstein, by calling into question
his conclusion that the defendant had no history of
violent behavior, despite being unaware of the defen-
dant’s violent episode several weeks prior to the mur-
der. The prosecutor’s line of questioning began when
Feuerstein openly acknowledged that he does not
‘‘always have 100% of the information’’ when conducting
analyses of patients. The prosecutor then asked
Feuerstein whether his conclusion that the defendant
was nonviolent would change if he knew that ‘‘just
weeks before this homicide [the defendant’s] friends
had to take [a] knife away from him so that he didn’t
go and stab his girlfriend?’’ Feuerstein admitted that it
was ‘‘not irrelevant’’ but still adhered to his conclusion
that the defendant ‘‘has no history of violence.’’
Feuerstein, however, then admitted that he ‘‘would have
explored [the violent episode] in more detail.’’ The pros-
ecutor then responded with the challenged remark:
‘‘Sure. Because, I mean, maybe he’s just a mean and
nasty person who was looking to kill somebody.’’ Fol-
lowing the defense’s objection, the prosecutor more
artfully rephrased his point: ‘‘Would you be interested
in the fact that he was making threats to kill other
people around the time that he killed [the victim] Joed
Olivera? Wouldn’t that inform your opinion about what
was going through his head at the time of this particular
murder?’’ The prosecutor’s remark served to demon-
strate both the incomplete nature of Feuerstein’s psy-
chiatric evaluation and to question whether there could
be an alternative explanation for the defense’s theory
that the defendant’s acts were an uncharacteristic
extreme emotional reaction. Indeed, the majority
acknowledges that the prosecutor’s underlying point
and line of questioning were ‘‘well supported . . . .’’
The majority’s disapproval of the statement stems
from the prosecutor’s use of the phrase ‘‘mean and
nasty’’ to describe the defendant. It is worth observing
that ‘‘mean and nasty’’ is an incredibly mild flavor of
invective and not ‘‘gratuitous, crudely phrased, and
inflammatory’’ such as those we have previously con-
demned. See State v. Oehman, 212 Conn. 325, 333, 562
A.2d 493 (1989) (prosecutor referred to defendant as
‘‘ ‘spoiled killer with a gun’ ’’ who had ‘‘ ‘no princi-
ples’ ’’); State v. Williams, 204 Conn. 523, 546, 529 A.2d
653 (1987) (prosecutor called defendant, among other
colorful epithets, ‘‘ ‘baby-beater,’ ’’ ‘‘ ‘infant-thrasher,’ ’’
‘‘ ‘savage child beater,’ ’’ ‘‘ ‘evil man,’ ’’ and ‘‘ ‘drunken
bum’ ’’); State v. Couture, 194 Conn. 530, 561, 482 A.2d
300 (1984) (prosecutor denounced defendants as
‘‘ ‘murderous fiends,’ ’’ ‘‘ ‘rats,’ ’’ ‘‘ ‘utterly merciless kill-
ers,’ ’’ and ‘‘ ‘inhumane, unfeeling and reprehensible
creatures’ ’’), cert. denied, 409 U.S. 1192, 105 S. Ct. 967,
83 L. Ed. 2d 971 (1985). Oddly, the majority recognizes
that the comment in the present case is ‘‘relatively tame’’
and falls far beneath the improper comments in these
prior cases, but nonetheless determines that it is
improper. See footnote 10 of the majority opinion.
In my view, the prosecutor’s comment was not gratu-
itously pejorative, but rather an inartful and poorly
crafted expression within a valid line of questioning.
We have never required unerring eloquence or exacting
linguistic precision from prosecutors while thinking on
their feet during the rapid and often unpredictable
exchange of cross-examination. Like closing argu-
ments, cross-examination of a witness is ‘‘seldom care-
fully constructed in toto before the event [and]
improvisation frequently results in syntax left imperfect
and meaning less than crystal clear.’’ (Internal quotation
marks omitted.) State v. Warholic, supra, 278 Conn.
368. Indeed, even had the prosecutor not used the exact
words ‘‘mean and nasty’’ in phrasing his legitimate com-
ment about the defendant’s prior violent incident during
which he threatened to harm his girlfriend with a knife,
in order to rebut Feuerstein’s conclusion of nonvio-
lence, the prosecutor would have had to necessarily
use some language to describe the defendant’s violent
behavior during the incident. I therefore cannot agree
with the majority’s view that the prosecutor’s otherwise
entirely proper and on point comment is improper sim-
ply due to words he happened to employ while under
the pressure of cross-examining a witness.
Furthermore, the majority’s characterization of the
prosecutor’s comment as improper in the present case
sanctions the practice by some defendants of recasting
every blunder and misspoken word of a prosecutor over
the course of a trial as ‘‘prosecutorial impropriety.’’ It
bears repeating that claims of prosecutorial impropriety
are ‘‘not intended to provide an avenue for the tactical
sandbagging of our trial courts, but rather, to address
gross prosecutorial improprieties that . . . have
deprived a criminal defendant of his right to a fair trial.’’
(Internal quotation marks omitted.) State v. Stevenson,
269 Conn. 563, 576, 849 A.2d 626 (2004). To brand every
prosecutorial error with the weighty mark of ‘‘prosecu-
torial impropriety’’ will have the inevitable effect of
making prosecutors unduly cautious and ultimately less
effective in their advocacy on behalf of the state.
Although ‘‘prosecutors are bound by constitutional con-
straints and the restraints of adversarial propriety, they
are not shackled by the chains of inadequate advocacy.’’
State v. Coney, 266 Conn. 787, 812 n.23, 835 A.2d 977
(2003). Zealous advocacy should not be supplanted by
overcautious and ineffective advocacy.
Furthermore, lightly labeling minor prosecutorial
missteps as improper also undermines the seriousness
of claims brought by those defendants that have experi-
enced egregious violations of their constitutional rights
due to improper prosecutorial behavior. As this court
has often observed, ‘‘[impropriety] is [impropriety],
regardless of its ultimate effect on the fairness of a
trial.’’ State v. Warholic, supra, 278 Conn. 361–62. Thus,
a prosecutor who asks a legitimate, but poorly phrased,
question finds himself tossed upon the sea of impropri-
ety alongside a prosecutor who impermissibly demeans
a defendant for exercising his fifth or sixth amendment
rights. The hypothetical defendants in each of those
scenarios would find themselves sharing the same
claim. A vast gulf separates the injuries to both defen-
dants, yet both may claim an equally severe violation
of their due process rights under the banner of prosecu-
torial impropriety. Certainly this serves to diminish the
gravity with which an appellate court should evaluate
severe prosecutorial improprieties and cheapens claims
of seriously prejudicial due process violations.
I would not conclude that the prosecutor’s ‘‘mean
and nasty’’ comment was improper, and to do so will
perpetuate a trend that unduly hampers prosecutors
and undermines legitimate claims of prosecutorial
impropriety. I therefore concur in the judgment.