State v. Holmes , 169 Conn. App. 1 ( 2016 )

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STATE OF CONNECTICUT v. DAQUAN HOLMES
(AC 38395)
Lavine, Keller and West, Js.
Argued May 10—officially released October 18, 2016
(Appeal from Superior Court, judicial district of New
London, geographical area number twenty-one,
Jongbloed, J.)
Cameron R. Dorman, assigned counsel, for the appel-
late (defendant).
Stephen M. Carney, senior assistant state’s attorney,
with whom, on the brief, was Michael L. Regan, state’s
attorney, for the appellee (state).
Opinion
WEST, J. The defendant, Daquan Holmes, appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a1 and criminal attempt to commit murder in violation
of General Statutes §§ 53a-492 and 53a-54a. On appeal,
the defendant claims that (1) the trial court abused its
discretion in denying his motion for a new trial, (2) the
prosecutor engaged in prosecutorial impropriety, and
(3) even if his due process rights were not violated,
this court should exercise its supervisory powers and
set aside his conviction due to deliberate prosecutorial
impropriety. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. In the early morning hours of May 21, 2011, Maria
Fluker was outside of Chacer’s bar (bar), located on
Franklin Street in Norwich, with her boyfriend, the
defendant. A man asked Fluker for a cigarette, which
angered the defendant. An argument began involving
twenty to thirty people, including the defendant. During
the argument, the defendant yelled, ‘‘get my gun.’’
The owner of the bar, Geoffrey Chase, who observed
the altercation, heard yelling about guns and knives; he
said that he had specifically heard someone say, ‘‘I’m
going to get my gun.’’ Chase called 911 and reported
that there were about twenty people outside his bar
yelling about guns and knives. Meanwhile, Roberta
Karr, a friend of the defendant, was in her apartment
across the street from the bar when she heard the distur-
bance. In response, she went outside to pull the defen-
dant away from the crowd and into her apartment. The
defendant, however, ran back toward the crowd, where
he encountered William Long, who had been inside the
bar. Karr got into a vehicle driven by Fluker, and they
headed toward the defendant. The defendant, his
brother, Ronald Holmes, and Long got into the car.
The group drove to Long’s residence and Long went
inside. When he reemerged, he had a gun. Upon getting
back in the car, Long handed the gun to the defendant.
The group then drove to the area of Boswell Avenue
and Franklin Street, where Joseph Cadet and Johnny
Amy were walking across the street. Long and the defen-
dant got out of the car and began yelling. Cadet and
Amy continued to walk and informed the two men that
they had the wrong guys.
Shots were fired in the direction of Amy and Cadet,
and the defendant was seen holding the gun. Amy fell
to the pavement, and Cadet ran away from the defen-
dant and Long. When the defendant and Long returned
to the car, the defendant was holding the gun. Fluker
then drove to Mystic, and while in route, Karr saw Long
throw the gun from the car. The group rented a room at
a hotel in Mystic, where Crystal Smith, Long’s girlfriend,
arrived after receiving a phone call from Ronald
Holmes.
Scott Dupointe, an officer with the Norwich Police
Department, was stationed in the area of the shooting
and was parked on Franklin Avenue when he heard six
to eight gunshots and immediately drove in the direction
of the shots. Upon reaching the intersection of Boswell
Avenue and Franklin Street, he found Cadet kneeling
over Amy. At 2:37 a.m., Dupointe called dispatch to
report that he heard gunshots and had arrived at the
scene. After radioing dispatch about the situation,
Dupointe drove down Boswell Avenue in search of the
car Cadet described as the vehicle in which the defen-
dant and Long had fled the scene. Unable to locate the
vehicle, Dupointe returned to the scene.
Amy was transported to the hospital, but he was later
pronounced dead. Following an autopsy, the medical
examiner determined the cause of death to be a gunshot
wound to the head. The scene of the shooting was
processed and several defects located in an adjacent
building were consistent with gunfire. Several .22 cali-
ber shell casings and a .22 caliber live round were also
found in the vicinity. On the basis of a statement made
by Karr, the police recovered a Ruger .22 caliber, semi-
automatic pistol that was consistent with having fired
the bullets recovered at the crime scene. Upon search-
ing Long’s residence, police also located a .22 caliber
hollow point round that was the same type located at
the scene of the shooting. The bullet was consistent
with the ammunition typically associated with the
recovered pistol. In addition, the police seized a surveil-
lance video from a nearby Laundromat that showed
Cadet and Amy walking together, Amy falling to the
ground, and Cadet running away and then returning to
assist Amy.
A warrant was issued nationwide for the defendant’s
arrest, and he was arrested in New York on October 19,
2011. He was brought back to Connecticut and charged
with murder in violation of § 53a-54a and criminal
attempt to commit murder in violation of §§ 53a-49 and
53a-54a. Following a jury trial, the defendant was con-
victed of both counts. The court subsequently denied
the defendant’s motion for a new trial and sentenced
the defendant to fifty-four years of incarceration. This
appeal followed. Additional relevant facts will be set
forth as necessary.
I
The defendant first claims that the court abused its
discretion in denying his motion for a new trial. In his
motion for a new trial, the defendant argued that
‘‘[t]here was insufficient evidence to support the jury’s
finding inasmuch as the defendant demonstrated
through scientific evidence and various times of day
within the state’s evidence that the allegations offered
by the state could not have happened.’’ On appeal, the
defendant argues that the verdict was based on physi-
cally impossible conclusions that he and his cohorts
could have left the bar, driven to Long’s residence, and
then driven to the scene of the shooting in the allotted
time.3 The defendant alternatively acknowledges, how-
ever, that he could have been at the scene of the shoot-
ing, but only if Karr and Fluker lied about the events
that occurred from the time that Long left the bar to
the time of the shooting, and he further argues that the
facts demonstrate that the testimony of both Karr and
Fluker was intentionally untrue, which rendered their
testimony unreliable and untrustworthy.
We begin our analysis by setting forth our standard
of review and the relevant law. ‘‘[T]he proper appellate
standard of review when considering the action of a
trial court granting or denying a . . . motion for a new
trial . . . [is] the abuse of discretion standard. . . . In
determining whether there has been an abuse of discre-
tion, every reasonable presumption should be given in
favor of the correctness of the court’s ruling. . . .
Reversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done. . . . We do not . . . determine whether a con-
clusion different from the one reached could have been
reached. . . . A verdict must stand if it is one that a
jury reasonably could have returned and the trial court
has accepted.’’ Bolmer v. McKulsky, 74 Conn. App. 499,
510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d
780 (2003).
When evaluating a physical impossibility claim, ‘‘[a]
verdict should be set aside [w]here testimony is . . .
in conflict with indisputable physical facts, the facts
demonstrate that testimony is either intentionally or
unintentionally untrue, and leave no real question of
conflict of evidence for the jury concerning which rea-
sonable minds could reasonably differ. . . . Scientific
evidence is relevant to a determination of what is physi-
cally impossible.’’ (Citation omitted; internal quotation
marks omitted.) State v. Vazquez, 119 Conn. App. 249,
254, 987 A.2d 1063 (2010).
The defendant set forth the following timeline. Chase
called 911 at 2:25 a.m. to report the argument occurring
outside of the bar. The bar’s surveillance video shows
Chase making this call at 2:25 a.m. The surveillance
video also shows Long exiting the bar at 2:28 a.m. to
join the defendant outside. The surveillance video from
the Laundromat first shows Cadet and Amy walking
away, and then Amy falling to the ground and Cadet
running away at approximately 3:32 a.m. At 2:37 a.m.
Dupointe called dispatch to report that he heard gunfire.
The defendant contends that the time stamp on the
Laundromat surveillance video was exactly one hour
off, and asserts that the time on the video should have
been 2:32 a.m. The defendant argues that based upon
the evidence, ‘‘the time elapsed between Long leaving
the bar and the earliest time the defendant could have
arrived at the scene of the shooting was just under
five and a half minutes.’’ The defendant claims that the
evidence shows that it would have taken the defendant
between nine and thirteen minutes to get to the scene
of the shooting, and therefore, he could not have been
at the scene when the victim was shot. The state con-
tends that the defendant offered no evidence to support
his claim that the Laundromat video was exactly one
hour off, and further asserts that the Laundromat video
was less than an hour off. The state bases that argument
on the fact that Dupointe called in to dispatch that shots
were fired at 2:37 a.m., and contends that it is unlikely
that it would have taken Dupointe five minutes to make
the call that shots had been fired.
The defendant cannot prevail on this physical impos-
sibility argument. First, the jury was free to credit or
discredit any of the time stamps on the surveillance
videos, leaving enough time for the defendant to have
shot the victim. The 911 call made by Chase corrobo-
rated the time stamp on the bar surveillance video.
Therefore, the jury, as the fact finder, was free to credit
the bar surveillance video time stamp as being in general
conformity with the actual time because in the video
one can see Chase dialing 911, and the time on the
video at that moment is proximate to the time of the
call. The defendant offered no evidence in support of
the assertion that the Laundromat surveillance video
time stamp was exactly one hour off, and the ambulance
dispatch report indicated that the dispatch call from
Dupointe was received at 2:37 a.m. Thus, given the fact
that Dupointe testified that he was just down the road
from the scene when he heard the gunshots and that
he called in to dispatch upon arriving on scene, the jury
was free to infer that the Laundromat video was less
than an hour off, and, therefore, that it was not physi-
cally impossible for the defendant to have been at the
scene when the victim was shot.
The defendant relies on Fluker and Karr’s credibility
to support his argument that it was physically impossi-
ble for him to arrive at the scene of the shooting in the
allotted time, however, he alternatively acknowledges
that ‘‘he could have been at the scene of the shooting,
but only if Karr and Fluker lied about the events that
occurred from the time that Long left the bar to the
time of the shooting.’’ The defendant seems to also be
arguing that the court abused its discretion in denying
his motion for a new trial because the state’s witnesses
were so lacking in credibility that his conviction consti-
tuted a miscarriage of justice. We are not persuaded.
This court has established that ‘‘[i]n evaluating evi-
dence, the [finder] of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . . Finally, it is beyond question that
the trier of fact . . . the jury, is the arbiter of credibil-
ity. This court does not sit as an additional juror to
reconsider the evidence or the credibility of the wit-
nesses. . . . Whether [a witness’] testimony [is] believ-
able [is] a question solely for the jury. It is . . . the
absolute right and responsibility of the jury to weigh
conflicting evidence and to determine the credibility
of the witnesses.’’ (Citation omitted; internal quotation
marks omitted.) State v. Vazquez, 119 Conn. App. 249,
255, 987 A.2d 1063, 1068 (2010).
The defendant claims that the facts demonstrate that
the testimony of both Karr and Fluker was intentionally
untrue, which rendered their testimony completely
unreliable and untrustworthy, particularly with respect
to the events that occurred from the time Long left
the bar up to, and including, the time of the shooting.
Although it is true that Karr and Fluker admitted to
falsehoods contained in their initial statements to the
police, the jury was free to make credibility determina-
tions and to believe whatever testimony it found credi-
ble. See State v. Vazquez, supra, 119 Conn. App. 255.
In denying the defendant’s motion for a new trial, the
court indicated that it ‘‘[found] that the evidence was
sufficient to permit the jury reasonably to find the defen-
dant guilty beyond a reasonable doubt on each of the
two counts’’ and noted that ‘‘defense counsel ably
argued that there was reasonable doubt based on the
scientific evidence as well as the time frame of the
events and the jury rejected those arguments.’’ Accord-
ingly, the court did not abuse its discretion in declining
to grant the defendant’s motion for a new trial.
II
The defendant next claims that his due process rights
were violated as a result of improper remarks made by
the prosecutor during the questioning of a witness and
during closing arguments. The state argues that none
of the prosecutor’s questions or remarks were
improper. We agree with the state and conclude that the
prosecutor’s questioning of the witness and his remarks
during closing argument were proper, and, therefore,
did not deprive the defendant of his right to a fair trial.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . 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. . . . If we conclude that prosecutorial impro-
priety has occurred, we then must determine, by
applying the six factors enumerated in [State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987)], whether
the entire trial was so infected with unfairness so as
to deprive the defendant of his due process right to a fair
trial. . . . These factors include the extent to which
the impropriety was invited by defense conduct, the
severity of the impropriety, the frequency of the impro-
priety, the centrality of the impropriety to the critical
issues in the case, the effectiveness of the curative
measures adopted and the strength of the state’s case.’’
(Citations omitted; internal quotation marks omitted.)
State v. Pascal, 109 Conn. App. 55, 67, 950 A.2d 566,
cert. denied, 289 Conn. 917, 957 A.2d 880 (2008).
‘‘[W]hen a defendant raises on appeal a claim that
improper remarks by the prosecutor deprived the defen-
dant of his constitutional right to a fair trial, the burden
is on the defendant to show, not only that the remarks
were improper, but also that, considered in the light of
the whole trial, the improprieties were so egregious
that they amounted to a denial of due process.’’ (Internal
quotation marks omitted.) State v. Maner, 147 Conn.
App. 761, 783, 83 A.3d 1182, cert. denied, 311 Conn. 935,
88 A.3d 550 (2014). Moreover, ‘‘[w]hen reviewing the
propriety of a prosecutor’s statements, we do not scruti-
nize each individual comment in a vacuum but, rather,
review the comments complained of in the context of
the entire trial.’’ (Citation omitted; internal quotation
marks omitted.) State v. Felix R., 319 Conn. 1, 9, 124
A.3d 871 (2015). ‘‘Because [some of] the claimed prose-
cutorial [improprieties] occurred during closing argu-
ments, we advance the following legal principles.
[P]rosecutorial [impropriety] of a constitutional magni-
tude can occur in the course of closing arguments
. . . . In determining whether such [an impropriety]
has occurred, the reviewing court must give due defer-
ence to the fact that [c]ounsel must be allowed a gener-
ous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely 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 reason-
able inferences to be drawn therefrom.’’ (Internal quota-
tion marks omitted.) State v. Ross, 151 Conn. App. 687,
693–94 A.3d 1208 (2014).
A
The defendant first claims that the prosecutor
improperly questioned Smith on direct examination and
redirect. Specifically, he argues that ‘‘the prosecutor
repeatedly attempted to elicit from [Smith] a highly
prejudicial extrajudicial statement made by Long, who
did not testify, and through improper questioning of
the witness effectively made known the substance of
that statement to the jury—all in violation of multiple
trial court orders . . . .’’
The following transpired during Smith’s testimony
and is relevant to the resolution of the defendant’s
claim. Smith testified that, after receiving a phone call
from Ronald Holmes, she went to a hotel in Mystic. She
further testified that Long, Fluker, Karr, Ronald Holmes,
and the defendant were in the hotel room. The prosecu-
tor asked about the atmosphere in the room and
according to Smith, ‘‘[e]verybody looked a little stressed
out.’’ The prosecutor then asked what happened next,
and Smith replied, ‘‘[Long] looked at [the defendant]
and said,’’ at which point defense counsel objected, and
the prosecutor withdrew his question. The prosecutor
then asked Smith, ‘‘Mr. Long said something; that’s a
yes or no,’’ and Smith responded, ‘‘[y]es.’’
Next, the prosecutor asked Smith, ‘‘[d]id the defen-
dant say something in response to what Mr. Long said?’’
Smith responded, ‘‘[h]e did.’’ The prosecutor asked her
what the defendant said and Smith replied, ‘‘[n]iggas
disrespect, niggas get spanked.’’ The prosecutor then
asked Smith, ‘‘[w]hat did Mr. Long say that caused that
reaction?’’ Smith replied, ‘‘[h]e said,’’ at which point
defense counsel objected. The prosecutor argued that
Long’s statement would explain the defendant’s subse-
quent statement, but the court ruled that he could ask a
question that would not elicit the out-of-court statement
made by Long. The prosecutor then asked Smith, ‘‘what
caused [the defendant] to say that?’’ Smith replied, ‘‘Wil-
liam Long said,’’ at which point defense counsel again
objected. The court sustained the objection.
Later, on direct examination, the prosecutor asked
Smith, ‘‘what do you know which would cause there
to be fear of the police?’’ and Smith stated, ‘‘I know the
statement that [the defendant] made.’’ The prosecutor
then asked, ‘‘[w]as there any other statement that made
you think that the police might come?’’ Smith replied,
‘‘[y]es.’’ The prosecutor asked her what statement that
was, and Smith responded, ‘‘Long made a statement,’’
at which point defense counsel objected, but the court
allowed her answer to stand. The prosecutor then asked
Smith, ‘‘what was it that made there a concern that the
police might come?’’ Smith replied, ‘‘[h]e said—Long,’’
at which point defense counsel objected again, and the
court heard counsel outside the presence of the jury.
Defense counsel argued that the prosecutor’s conduct
was bordering on bad faith for continuously attempting
to get Long’s statement into evidence, and the prosecu-
tor argued that Long’s statement was necessary to place
the defendant’s statement into context. The court sus-
tained defense counsel’s objection and stated that the
prosecutor could ask the witness about the defendant’s
statement without eliciting Long’s hearsay statement.
Once the jury returned, the prosecutor asked Smith
what the defendant’s statement meant, and she
responded, ‘‘[i]t means if someone disrespects him, then
he’ll kill them.’’ The prosecutor followed up by asking,
‘‘[t]his is a yes or no; did Mr. Long say anything before
that statement was made that made you think that?’’
Smith answered, ‘‘[y]es.’’
On cross-examination, defense counsel asked Smith,
‘‘[a]s far as you know, William Long could have shot
[the victim] right?’’ Smith responded, ‘‘[a]s far as I know,
except for what I,’’ at which point defense counsel inter-
rupted her and continued with another question, to
which the prosecutor objected, saying Smith did not
get to finish her answer. The court allowed her to finish
her answer, and she stated, ‘‘[a]s far as I know, except
for what I was told in the [hotel] room.’’ Defense counsel
continued questioning her about whether Long could
have shot the victim, and Smith continuously was
prompted to state what she heard Long say in the hotel
room. The prosecutor again objected when defense
counsel continued interrupting Smith’s answers,
arguing that she should be allowed to answer fully, and
the court ruled that defense counsel needed to allow
her to answer the questions asked. Defense counsel
then prefaced that he was asking yes or no questions
and asked Smith, ‘‘you can’t tell us anything about who
shot that boy in the street on May 21, right?’’ The prose-
cutor objected, and the court ruled that Smith could
answer. Smith replied, ‘‘I did hear in the hotel room
who shot the man in the street.’’
On redirect examination, the prosecutor asked Smith,
‘‘[d]o you know who shot the man in Norwich?’’ Smith
responded, ‘‘I was told who shot the man in Norwich.’’
The prosecutor then asked her, ‘‘[w]ho told you who
shot the man in Norwich?’’ Smith replied, ‘‘William
Long.’’ Next, the prosecutor asked Smith, ‘‘[w]as [the
defendant] present . . . when William Long told you
who shot the man in Norwich?’’ Smith responded,
‘‘[y]es.’’ The prosecutor then asked what Long said to
her, and defense counsel asserted another hearsay
objection, which was sustained.
The defendant contends that the prosecutor made
seven attempts to elicit testimony from Smith regarding
a highly prejudicial statement made by Long that impli-
cated the defendant. The defendant argues that through-
out the attempts, the prosecutor defied two explicit
court rulings that ordered the prosecutor to ask ques-
tions that did not elicit the statement made by Long.
The state maintains that the prosecutor had a good faith
basis for pursuing his line of questioning each time he
returned to the subject of Long’s statement to the
defendant.
The content of Long’s statement was not elicited from
Smith, nor was it included in the prosecutor’s inquiries
to Smith. Although the court sustained defense coun-
sel’s various hearsay objections during the prosecutor’s
questioning of Smith, the court never admonished the
prosecutor or ordered him to move on to a different
subject, which would be expected if the prosecutor’s
questioning was in fact so egregious as claimed. We
agree with the state that simply posing an objectionable
question does not amount to an actionable impropriety.
See State v. Garcia, 7 Conn. App. 367, 374, 509 A.2d 31
(1986) (‘‘Often, during the course of a trial, objection-
able questions are asked, objections are sustained, and
the trial goes on. The due administration of justice
would be ill served if every time an objectionable ques-
tion were asked the case would be subject to a mis-
trial.’’). Furthermore, it is important to note that many
responses from Smith, harmful to the defense, were
elicited by defense counsel on cross-examination. It
was during cross-examination of Smith that defense
counsel posed the question, ‘‘[a]s far as you know, Wil-
liam Long could have shot [the victim], right?’’ Smith
responded by stating, ‘‘[a]s far as I know . . . except
for what I was told in the [hotel] room.’’ Smith’s
response was interrupted by defense counsel asking
another question, to which the prosecutor objected,
arguing that Smith did not have a chance to fully answer,
and the court allowed Smith to finish her answer. It
was also on cross-examination that Smith indicated that
she ‘‘did hear in the hotel room who shot the man in
the street.’’
Moreover, the prosecutor’s questioning on redirect
examination was invited by the court’s ruling that Smith
would be subject to redirect examination in response to
the prosecutor’s objection regarding defense counsel’s
not allowing her to answer. In addition, defense coun-
sel’s suggestions that the defendant’s statement in the
hotel room was in reference to a card game and that
Smith did not know who killed the victim invited the
prosecutor to inquire further into those subjects. Signifi-
cantly, defense counsel did not move to strike Smith’s
answer after the court allowed her to finish it. There-
fore, pursuant to our review of the record, we conclude
that the prosecutor’s questions were attributable to vig-
orous advocacy as opposed to impropriety.
B
The defendant also argues that the prosecutor made
improper remarks during closing arguments. Specifi-
cally, the defendant contends that ‘‘the prosecutor mis-
characterized evidence in his closing argument to the
jury.’’
‘‘[T]he prosecutor may argue the state’s case force-
fully, [provided the argument is] fair and based upon
the facts in evidence and the reasonable inferences to
be drawn therefrom. . . . [W]e must give the jury the
credit of being able to differentiate 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 state’s attor-
ney should not be put in the rhetorical straightjacket
of always using the passive voice, or continually empha-
sizing that he is simply saying I submit to you that this
is what the evidence shows, or the like.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Franklin, 162 Conn. App. 78, 101, 129 A.3d 770 (2015),
cert. denied, 321 Conn. 905, 138 A.3d 281 (2016).
The defendant argues that the prosecutor made the
following improper statements during direct and rebut-
tal closing arguments, and contends that the statements
were unsupported by the record and mischaracterized
the evidence: (1) ‘‘The video on the Laundromat says
the body fell at 3:32:43; simply not accurate’’; (2) ‘‘When
[the defendant] gets back in the car, [Karr] says that
she sees [the defendant] holding the gun’’; (3) ‘‘[The
defendant] is arguing; [Fluker] says the argument is
about the fact that an individual, we would suggest the
evidence might show that that individual is Cornelius
Wingate’’; (4) ‘‘You can see that on the video, the phone
call is made, the hand gestures, and Long does in fact
exit the bar just like Fluker says.’’
The first statement that the defendant challenges
regarding the inaccuracy of the Laundromat surveil-
lance video is conceded by the defendant, given that
the defendant’s claim regarding physical impossibility
is premised on the fact that the Laundromat video was
exactly one hour off; in other words, that the time on the
video was not in fact accurate. The second challenged
statement, that Karr said she saw the defendant with
the gun after he got back into the car, was a proper
representation of Karr’s testimony.4 Although the state
agrees with the defendant that at an earlier point in her
testimony, when asked whether Long held the gun the
entire time in the car, Karr responded, ‘‘yea,’’ the state
maintains that Karr appeared to be referring to the time
period prior to the shooting, during which the group
was searching for the individual with whom the defen-
dant had an argument.
The third statement that the defendant challenges
regarding the prosecutor’s suggestion that Wingate may
have been the individual with whom the defendant got
into a fight, was also proper, as it raised a possible
inference based on the evidence in the record. Wingate
testified that he had engaged in an argument outside of
the bar, during which he was stabbed. He also identified
Long, a man he knew from prison, as one of the individu-
als he was arguing with, as well as another man and a
woman. According to Fluker’s testimony, in the hotel
room ‘‘Long said something about stabbing somebody,
cutting them.’’ Additionally, Wingate was wearing a red
shirt the night of the shooting, which was seized by the
police and introduced into evidence. The victim was
wearing a red shirt when he was shot, which also was
introduced into evidence. These facts, together with
Cadet’s testimony that he told the two men that encoun-
tered him and the victim in the street that they had the
wrong guys, was enough to permit the inference that
the shooter mistook the victim for Wingate. Finally, the
prosecutor’s description of the bar video, specifically
his reference to hand gestures, was supported by both
the video itself and Fluker’s testimony that Long left
the bar because ‘‘[the defendant’s brother] Ron flagged
him to come outside.’’ Accordingly, on the basis of our
thorough review of the record, we conclude that no
prosecutorial impropriety occurred during the prosecu-
tor’s closing arguments because his arguments were
predicated on evidence produced during the trial.
III
The defendant also claims that this court should exer-
cise its supervisory powers and set aside his conviction
due to deliberate prosecutorial impropriety. We decline
that request.
‘‘[I]n considering claims of prosecutorial [impropri-
ety], we apply a due process analysis and consider
whether the defendant was deprived of a fair trial. . . .
A different standard is applied, however, when the claim
involves deliberate prosecutorial [impropriety] during
trial which violates express court rulings . . . . When
such an allegation has been made, we must determine
whether the challenged argument was unduly offensive
to the maintenance of a sound judicial process. . . . If
we answer that question in the affirmative, we may
invoke our supervisory powers to reverse the defen-
dant’s conviction. . . . In determining whether the use
of our supervisory powers to reverse a conviction is
appropriate, we consider whether the effect of the chal-
lenged remark was to undermine the authority of the
trial court’s ruling . . . . We also consider the degree
of prejudice suffered by the defendant as a result of
the remark. . . .
‘‘Our Supreme Court . . . has urged a cautionary
approach in this regard, noting that [r]eversal of a con-
viction under our supervisory powers . . . should not
be undertaken without balancing all of the interests
involved: the extent of prejudice to the defendant; the
emotional trauma to the victims or others likely to result
from reliving their experiences at a new trial; the practi-
cal problems of memory loss and unavailability of wit-
nesses after much time has elapsed; and the availability
of other sanctions for such [impropriety]. . . .
‘‘In State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001,
cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed.
2d 259 (1983), our Supreme Court first enunciated the
principles relevant to claims of deliberate prosecutorial
impropriety in violation of a trial court’s ruling. Our
Supreme Court held that, where such impropriety has
occurred, an appellate court may exercise its inherent
supervisory authority over the administration of justice
to defend the integrity of the judicial system. . . . The
court blatantly rejected the argument that it could upset
a criminal conviction on account of prosecutorial
impropriety only where such conduct had deprived the
defendant of his constitutional right to a fair trial. . . .
Instead, the court recognized that, given the proper
circumstances and regardless of whether deliberate
impropriety deprived a defendant of a fair trial, the
drastic step of upsetting a criminal conviction might be
necessary to deter conduct undermining the integrity of
the judicial system. . . . Thus, after weighing relevant
considerations, the court placed a primacy upon its
responsibility for the enforcement of court rules in pros-
ecutorial [impropriety] cases and for preventing
assaults on the integrity of the tribunal. . . . The court
reasoned that it had an obligation to deter purposeful
impropriety and concluded that reversal in cases involv-
ing such deliberate conduct may be warranted even
where a new trial is not constitutionally mandated. . . .
Hence, the touchstone of our analysis in a claim of this
nature is not the fairness of the trial but the existence of
[impropriety] that deliberately circumvents trial court
rulings.’’ (Internal quotation marks omitted.) State v.
Reynolds, 118 Conn. App. 278, 296–98, 983 A.2d 874
(2009), cert. denied, 294 Conn. 933, 987 A.2d 1029
(2010).
The defendant maintains that the prosecutor engaged
in impropriety based on his ‘‘repeated noncompliance
with the trial court’s explicit and unambiguous order’’
and ‘‘his flippant response to the trial court when the
defendant objected to the repeated attempts to get
Long’s statement before the jury.’’ We disagree.
Although the defendant contends that the court’s order
was explicit and unambiguous, the only statement of
the court that the defendant references in his appellate
brief is the court’s statement, ‘‘Well, hold on. If you
wish to be heard further, maybe this is something that
should be done outside of the presence of the jury.’’
The defendant also cites the prosecutor’s response to
that inquiry in which he stated, ‘‘It’s the court’s pleasure;
I don’t mind doing it in front of them.’’ The statement
by the court on which the defendant relies as an explicit
order seems to be phrased as a suggestion or even
a question posed to the prosecutor. Furthermore, as
previously noted, the court did not expressly forbid the
prosecutor from continuing on his line of questioning
with respect to Long’s statement to the defendant, but,
rather, the court sustained various hearsay objections
that defense counsel made throughout the prosecutor’s
examination of the witness. Moreover, as previously
discussed, the court did not admonish the prosecutor
or reprimand him in any other way. Accordingly, it
cannot be said that the prosecutor defied an order of
the court. We thus decline to exercise our supervisory
powers as there is no basis to do so.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person or of a third person . . . .’’
2
General Statutes § 53a-49 (a) provides in relevant part: ‘‘A person is
guilty of an attempt to commit a crime if, acting with the kind of mental
state required for commission of the crime, he: (1) Intentionally engages in
conduct which would constitute the crime if attendant circumstances were
as he believes them to be . . . .’’
3
The state argues that the defendant’s claim is unpreserved because he
is not challenging the court’s denial of his motion based on the overall
sufficiency of the state’s evidence, but, rather, he is arguing that his motion
should have been granted because it was physically impossible for the
defendant to have been at the scene at the time of the shooting and that
Fluker and Karr were not credible witnesses. We conclude, however, that
the defendant sufficiently preserved this claim in his motion for a new trial
in which he contended that ‘‘[t]here was insufficient evidence to support
the jury’s finding inasmuch as the defendant demonstrated through scientific
evidence and the various times of the day within the state’s evidence that
the allegations offered by the state could not have happened.’’
4
On direct examination of Karr by the prosecutor the following
exchange occurred:
‘‘Q. After the man fell and the men are back in the car, did you see [the
defendant] with the gun?
‘‘A. In the backseat, yeah. . . .
‘‘Q. Did [the defendant] have the gun when he got back in the car?
‘‘A. I believe so, yeah.
‘‘Q. Is that a yes?
‘‘A. Yes. . . .
‘‘Q. When you saw the body fall, could you, in that immediate time, see
one of the men with a gun?
‘‘A. When they got back in the car, yeah, [the defendant] had the gun.
‘‘Q. [The defendant] had the gun when he got back in the car?
‘‘A. Mm-hmm.’’