State v. Devito ( 2015 )

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STATE OF CONNECTICUT v. DOMINICK J. DEVITO
(AC 35815)
Gruendel, Prescott and Bishop, Js.
Argued March 5—officially released September 8, 2015
(Appeal from Superior Court, judicial district of
Litchfield, geographical area number eighteen,
Marano, J.)
Mary A. Beattie, assigned counsel, for the appel-
lant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were David S. Shepack, state’s attorney,
and Meredith Blake, special deputy assistant state’s
attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Dominick J. Devito,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of operating a motor vehicle
while under the influence of intoxicating liquor or drug
in violation of General Statutes § 14-227a (a) (1) and
one count of operating a vehicle while his license was
under suspension in violation of General Statutes § 14-
215 (a). On appeal, the defendant claims that (1) the
trial court improperly admitted testimony regarding his
post-Miranda1 silence and (2) the prosecutor engaged
in impropriety during the trial and in closing argument.
We affirm the judgment of the court.
The following facts reasonably could have been found
by the jury at trial. At approximately 2 a.m., on August
21, 2011, Robert Hazen, Jr., a state trooper, was assisting
Christopher Barone, another state trooper, in effecting
a traffic stop on Route 44 in North Canaan. At the time,
Hazen’s marked police cruiser was parked on the side
of the road, facing eastbound, with its overhead flashing
lights activated. While assisting Barone, Hazen heard
the sound of tires screeching. As he turned, he observed
a dark sports utility vehicle, approximately seventy-five
yards away, make an abrupt U-turn and then pull over
to the side of the road. Hazen then proceeded to enter
his car, make a U-turn, and drive his police cruiser to
within two car lengths of the dark sports utility vehicle.
Hazen testified that he was able to move his vehicle in
less than one minute and only lost visual contact with
the sports utility vehicle for a second or two.
Hazen then approached the vehicle and observed one
occupant, the defendant, seated in the driver’s seat. At
this point, the vehicle was turned off and the keys were
on the floor. Hazen requested the defendant’s license
and registration. During this discussion, Hazen detected
the smell of alcohol emanating from the vehicle. He
asked the defendant if he had consumed any alcohol
that evening, to which the defendant replied that he
had had ‘‘ ‘three or four drinks.’ ’’ Hazen observed that
the defendant’s speech was slurred and his eyes
appeared glassy. Hazen then proceeded to conduct
three field sobriety tests on the defendant.2 The defen-
dant failed to perform adequately during each of the
three tests. As a result, Hazen concluded that he had
probable cause to arrest the defendant for driving under
the influence.
While Hazen was performing the field sobriety tests,
Joshua Holcombe, another state trooper, arrived at the
scene to provide assistance. Holcombe testified that he
arrived approximately ten minutes after the initial stop.
When the defendant was placed under arrest, Holcombe
spoke to him and could smell alcohol on his breath.
Barone also arrived on the scene to provide assistance.
He testified that he could not recall whether the defen-
dant had spoken to him.
The defendant was transported to the state police
barracks where Hazen, in his capacity as the arresting
trooper, processed the defendant. Hazen advised the
defendant of his Miranda rights and collected back-
ground information. He then proceeded to read the
defendant a notice of his rights regarding submission
to a breath test.3 After being notified of his rights, the
defendant refused to submit to the test. The defendant
was subsequently charged with one count of driving
under the influence of intoxicating liquor and one count
of driving with a suspended license. During this time,
Barone assisted in processing the defendant, which
included signing a document stating that he had wit-
nessed the defendant receive notice of his rights regard-
ing the breath test, as well as the defendant’s subsequent
refusal to perform the test.
The case was tried to a jury. Prior to the state’s case-
in-chief, the parties stipulated to the following fact:
‘‘[O]n August 21, 2011, the defendant’s operator’s
license had been under suspension since June 29, 2011,
for failing to appear for a hearing or trial in association
with a non-alcohol related traffic summons.’’
At trial, the primary issue in dispute was whether
the defendant was the driver of the dark sports utility
vehicle on the night in question. The defendant argued
that Barone, Hazen, and Holcombe never observed the
defendant operating the vehicle and, thus, the state
could not establish that he had committed the offense.
Further, the defendant presented the testimony of Blake
Balaam, who testified that he had been the driver of
the vehicle that night. Balaam testified that he and the
defendant had worked together as chefs at a restaurant
until around midnight. He further testified that, after
work, he and the defendant went to Balaam’s house
‘‘to play cards and hang out for a little bit.’’ Afterwards,
Balaam drove the defendant back to his apartment.
He testified that he usually drives the defendant home
because the defendant has poor eyesight and has diffi-
culty driving at night. He stated that, on the evening in
question, consistent with his usual practice when driv-
ing the defendant, he drove the vehicle eastbound on
Route 44, completed a U-turn, and parked it alongside
the curb. Balaam also stated that he did not remember
seeing any police cruisers on the road when he made
the U-turn. He further testified that, after parking the
vehicle, he placed the keys in the cup holder, exited
the vehicle, and entered another vehicle driven by his
girlfriend, who then drove away.
During the state’s case-in-chief, the prosecutor asked
Hazen, Barone, and Holcombe if they had observed any
other vehicles parked or idling in the vicinity of the dark
sports utility vehicle. Each state trooper affirmatively
stated that they had not seen any other vehicle in the
area. Hazen further testified that he observed only one
occupant in the vehicle, which was the defendant.
Hazen specifically noted that he had observed the dark
sports utility vehicle continuously, with the exception
of a few seconds when he turned his own vehicle
around, and did not see another person exit the vehicle.
At the conclusion of trial, the jury returned a verdict
of guilty on both counts and the court sentenced the
defendant to two years incarceration, execution sus-
pended after six months, and three years of probation.4
From this judgment, the defendant appeals.
I
We first consider the defendant’s evidentiary claim.
The defendant claims that his due process right to a fair
trial was violated when the court improperly admitted
testimony regarding his post-Miranda silence at the
police station. Specifically, he argues that the ‘‘admis-
sion of evidence of post-Miranda silence violated his
due process rights as guaranteed by the fourteenth
amendment to the United States constitution in viola-
tion of Doyle v. Ohio, 426 U.S. 610, [96 S. Ct. 2240, 49
L. Ed. 2d 91] (1976) . . . .’’ We are not persuaded.
At the outset, the defendant acknowledges that his
claim is unpreserved, and, therefore, seeks to prevail
under State v. Golding, 213 Conn. 233, 567 A.2d 823
(1989). ‘‘Under Golding, a defendant can prevail on a
claim of constitutional error not preserved at trial only
if all of the following conditions are met: (1) the record
is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude, alleging the
violation of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. . . . The first two Golding require-
ments involve whether the claim is reviewable, and the
second two involve whether there was constitutional
error requiring a new trial.’’ (Internal quotation marks
omitted.) State v. Fagan, 280 Conn. 69, 89–90, 905 A.2d
1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491,
167 L. Ed. 2d 236 (2007); see In re Yasiel R., 317 Conn.
773, 781, A.3d (2015) (modifying third prong).
Here, the record is adequate for review of the defen-
dant’s claim and the allegation of a denial of due process
is one of constitutional magnitude. Thus, we now con-
sider whether the defendant can establish the existence
of a constitutional violation.
‘‘In Doyle v. Ohio, [supra, 426 U.S. 610], the United
States Supreme Court held that the impeachment of a
defendant through evidence of his silence following his
arrest and receipt of Miranda warnings violates due
process. The court based its holding in two considera-
tions: First, it noted that silence in the wake of Miranda
warnings is ‘insolubly ambiguous’ and consequently of
little probative value. Second and more important, it
observed that ‘while it is true that the Miranda warnings
contain no express assurance that silence will carry no
penalty, such assurance is implicit to any person who
receives the warnings. In such circumstances, it would
be fundamentally unfair and a deprivation of due pro-
cess to allow the arrested person’s silence to be used
to impeach an explanation subsequently offered at trial.’
. . . The [United States Supreme Court] reaffirmed
Doyle’s reasoning in Wainwright v. Greenfield, 474 U.S.
284, 290, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986), in which
it held that the defendant’s silence following his arrest
and receipt of Miranda warnings could not be used at
trial to rebut his defense of insanity. The court reasoned:
‘The point of the Doyle holding is that it is fundamentally
unfair to promise an arrested person that his silence
will not be used against him and thereafter to breach
that promise by using the silence to impeach his trial
testimony. It is equally unfair to breach that promise
by using silence to overcome a defendant’s plea of
insanity.’ ’’ (Citation omitted.) State v. Plourde, 208
Conn. 455, 465–66, 545 A.2d 1071 (1988).
Although evidence of the defendant’s post-Miranda
silence is prohibited, the United States Supreme Court
has concluded that evidence of the defendant’s silence
prior to the receipt of Miranda warnings does not vio-
late due process. Fletcher v. Weir, 455 U.S. 603, 102 S.
Ct. 1309, 71 L. Ed. 2d 490 (1982). The court in Fletcher
held that ‘‘[i]n the absence of the sort of affirmative
assurances embodied in the Miranda warnings, we do
not believe that [admission of the defendant’s silence]
violates due process of law . . . .’’ Id., 607. In so con-
cluding, the court quoted Jenkins v. Anderson, 447 U.S.
231, 239, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980), which
stated: ‘‘Common law traditionally has allowed wit-
nesses to be impeached by their previous failure to
state a fact in circumstances in which that fact naturally
would have been asserted. 3A J. Wigmore, Evidence
§ 1042, p. 1056 (Chadbourn rev. 1970). Each jurisdiction
may formulate its own rules of evidence to determine
when prior silence is so inconsistent with present state-
ments that impeachment by reference to such silence
is probative.’’ In accordance with this precedent, our
Supreme Court has held that ‘‘[p]re-arrest silence under
circumstances where one would naturally be expected
to speak may be used either as an admission or for
impeachment purposes.’’ (Internal quotation marks
omitted.) State v. Walker, 206 Conn. 300, 306, 537 A.2d
1021 (1988); see also State v. Montgomery, 254 Conn.
694, 714, 759 A.2d 995 (Doyle and its progeny apply to
use of prearrest silence as affirmative proof at trial.)
During the trial, the prosecutor asked Hazen, Barone,
and Holcombe whether the defendant had ever denied
driving the vehicle during the course of the evening.
Hazen5 and Holcombe6 each affirmatively stated that
the defendant had never denied driving the vehicle.
Barone testified that he could not recall whether the
defendant denied driving.7 On appeal, the defendant
claims that these questions reasonably could have been
understood by the jury as implicating his post-
Miranda silence.
We begin by reviewing the testimony of Barone and
Holcombe and conclude that the defendant is unable
to establish a due process violation with regard to their
testimony. Barone testified that he could not remember
whether the defendant said he was not driving on the
night in question, and, thus, there was no affirmative
response to the prosecutor’s inquiry and no admission
of evidence regarding the defendant’s silence. Hol-
combe testified only as to the events that transpired
during the traffic stop. As the record establishes that
the defendant was not read his Miranda rights until
after he was arrested and transported to the state police
barracks, Holcombe’s testimony could not have impli-
cated the defendant’s post-Miranda silence.
We now consider Hazen’s testimony on both direct
and redirect examination. With regard to Hazen’s redi-
rect examination, the testimony did not implicate the
defendant’s post-Miranda silence. On redirect exami-
nation, the prosecutor asked Hazen the following:
‘‘[Y]ou approached the operator [of the vehicle] and
asked for what?’’ After Hazen responded, the prosecu-
tor then asked the following question: ‘‘And during that
time, did [the defendant] say he was not driving the
vehicle.’’ (Emphasis added.) Hazen answered, ‘‘No.’’
Thus, Hazen’s response on redirect examination was
limited to the defendant’s silence during the traffic stop.
As the Miranda warnings were not provided until the
defendant was transported to the state police barracks
after the arrest was made, Hazen’s redirect examination
testimony was properly admissible and, thus, cannot
form the basis of a due process violation.
Finally, we consider Hazen’s testimony in response
to the state’s question during direct examination as to
whether the defendant ‘‘ever directly denied driving the
vehicle . . . .’’ The defendant contends that the ques-
tion to Hazen could have been understood to encom-
pass post-Miranda silence. Given the context in which
the question was asked, however, it is more probable
that it would have been understood to refer to the
defendant’s prearrest silence. Hazen’s testimony was
primarily focused on the defendant’s conduct during the
traffic stop. His only post-Miranda testimony related to
the defendant’s decision to forgo the breath test at the
police station. Furthermore, the state’s line of inquiry
leading up to the question related only to the defen-
dant’s conduct at the scene rather than at the barracks.
See State v. Jeffrey, 220 Conn. 698, 720–21, 601 A.2d 993
(1991) (defendant’s claim failed third prong of Golding
because, although question was ambiguous, it was more
probable that question related to defendant’s prearrest
silence), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041,
120 L. Ed. 2d 909 (1992). We therefore conclude that
the defendant cannot prevail on his unpreserved claim
of constitutional error because he has failed to demon-
strate that an alleged constitutional violation existed.
II
The defendant next claims that the prosecutor
engaged in impropriety, both during the trial as well
as during closing argument. Specifically, the defendant
claims that the prosecutor improperly (1) implicated
his post-Miranda right to remain silent, (2) drew atten-
tion to the defendant’s decision not to testify, (3) shifted
the state’s burden of proof to the defendant, (4) made
a ‘‘golden rule’’ argument, (5) stated her personal opin-
ion as to the defendant’s guilt, (6) commented on infor-
mation not in evidence, (7) misled the jury on two
critical facts, and (8) commented on the defendant’s
alibi witness.
The applicable law governing claims of prosecutorial
impropriety is well established. ‘‘[I]n analyzing claims
of prosecutorial [impropriety], we engage in a two step
process. The two steps are separate and distinct: (1)
whether [an impropriety] occurred in the first instance;
and (2) whether that [impropriety] deprived [the] defen-
dant of his due process right to a fair trial. Put differ-
ently, [an impropriety is an impropriety], regardless of
its ultimate effect on the fairness of the trial; whether
that [impropriety] caused or contributed to a due pro-
cess violation is a separate and distinct question . . . .’’
(Internal quotation marks omitted.) State v. Andrews,
313 Conn. 266, 279, 96 A.3d 1199 (2014); see also State
v. Stevenson, 269 Conn. 563, 572, 849 A.2d 626 (2004).
‘‘To determine whether any improper conduct by the
[prosecutor] violated the defendant’s fair trial rights is
predicated on the factors set forth in State v. Williams
[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due
consideration of whether that misconduct was objected
to at trial. . . . These factors include the extent to
which the [impropriety] was invited by defense conduct
or argument . . . the severity of the [impropriety] . . .
the frequency of the [impropriety] . . . the centrality
of the [impropriety] to the critical issues in the case
. . . the strength of the curative measures adopted
. . . and the strength of the state’s case.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Felix R., 147 Conn. App. 206, 219, 83 A.3d 619 (2013),
cert. granted on other grounds, 311 Conn. 915, 84 A.3d
883 (2014).8
A
The defendant first argues that the prosecutor com-
mitted impropriety, during the trial and at closing argu-
ment, when she implicated the defendant’s post-
Miranda right to remain silent. We disagree.
We begin by analyzing the defendant’s claim regard-
ing the prosecutor’s questions during trial. In part I of
this opinion, we concluded that the defendant failed to
establish, under Golding, the existence of a due process
violation when the court admitted the testimony of the
three state troopers, who had observed the defendant
during the traffic stop. The defendant attempts to claim
that elicitation of the troopers’ testimony was not only
an improper admission of evidence, but also prosecu-
torial impropriety. It is well established, however, that
‘‘[a]lthough . . . unpreserved claims of prosecutorial
impropriety are to be reviewed under the Williams
factors, that rule does not pertain to mere evidentiary
claims masquerading as constitutional violations.’’ State
v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133,
cert. denied, 284 Conn. 912, 931 A.2d 932 (2007). As a
‘‘defendant may not transform an unpreserved eviden-
tiary claim into one of prosecutorial impropriety to
obtain review of that claim’’; id., 431; we decline to
review this evidentiary claim under the prosecutorial
impropriety framework.9
The defendant’s claim of impropriety with regard to
the prosecutor’s statements at closing argument con-
cerning the defendant’s silence is similarly without
merit. Once the state troopers’ testimony was admitted
at trial without objection, the prosecutor was permitted
to base her arguments on that evidence. Our Supreme
Court has held that ‘‘[a]rguing on the basis of evidence
explicitly admitted . . . cannot constitute prosecu-
torial [impropriety].’’ State v. Rowe, 279 Conn. 139, 152,
900 A.2d 1276 (2006); see also State v. Cromety, supra,
102 Conn. App. 434 (‘‘[o]nce the testimony [at issue]
was in evidence, the prosecutor was permitted to use
it during final argument’’). Accordingly, the prosecutor’s
comments during closing argument regarding the defen-
dant’s silence did not constitute prosecutorial impro-
priety.
B
The defendant next alleges impropriety when the
prosecutor ‘‘[drew] attention to the defendant’s deci-
sion not to testify.’’ Specifically, the defendant argues
that ‘‘the prosecutor asked the jury to imply the defen-
dant’s guilt from the fact that the defendant, from the
time of the initial stop throughout his time at the police
station, did not tell the police that he was not the driver.
[The prosecutor’s] questions to the officers were in
effect a challenge to the defendant to testify in order
to rebut the allegations she was making that his silence
proved his guilt.’’ We disagree.
‘‘It is well settled that comment by the prosecuting
attorney . . . on the defendant’s failure to testify is
prohibited by the fifth amendment to the United States
constitution. . . . [Our Supreme Court] applies the fol-
lowing test in evaluating whether a prosecutor’s remark
has violated this right: Was the language used manifestly
intended to be, or was it of such a character that the
jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify? . . .
The prosecutor [is, however,] entitled to comment on
the quality of the evidence supporting this claim.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Grant, 286 Conn. 499, 539, 944 A.2d 947, cert. denied,
555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).
Furthermore, the prosecutor is allowed to comment on
the general weakness of the defendant’s case. See State
v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985) (‘‘by
his failure to testify, [the defendant] cannot insulate
himself from general comment on the weakness of his
case, even though his failure so to testify may be per-
ceived by the jury as having contributed to the general
weakness about which comment is made’’). Finally, the
prosecutor is also allowed to argue forcefully not just
from the facts in evidence, but also from any reasonable
inferences that can be drawn from those facts. State v.
Luster, 279 Conn. 414, 428–29, 902 A.2d 606 (2006).
In the present case, the prosecutor’s closing argu-
ment urged the jury to make the reasonable inference
that, based on the evidence, the defendant was the
driver of the vehicle on the night in question. This form
of argument is permissible as a comment on the weak-
ness of the defendant’s case, and is not ‘‘naturally and
necessarily’’ intended as a comment on the defendant’s
failure to testify. State v. Grant, supra, 286 Conn. 539.
Accordingly, we conclude that the prosecutor’s state-
ments were not improper.
C
The defendant alleges that the prosecutor’s questions
and comments regarding the defendant’s silence had the
effect of shifting the burden of proof to the defendant to
prove his innocence. The defendant, however, fails to
set forth how the prosecutor’s statements, which chal-
lenged the defendant’s alternative view of the events,
actually shifted the state’s burden of proof. ‘‘[I]t is not
improper for the prosecutor to comment upon the evi-
dence presented at trial and to argue the inferences
that the jurors might draw therefrom . . . . We 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.
(Emphasis added; internal quotation marks omitted.)
State v. Stevenson, supra, 269 Conn. 583. Additionally,
‘‘something must be allowed for the zeal of counsel
in the heat of argument.’’ (Internal quotation marks
omitted.) State v. Williams, 81 Conn. App. 1, 14, 838
A.2d 214, cert. denied, 268 Conn. 904, 845 A.2d 409
(2004). The defendant has failed to establish how the
prosecutor’s comments went beyond permissible argu-
ment and, thus, shifted the burden of proof in the minds
of the jury. Accordingly, the defendant’s claim fails. See
State v. Elson, 311 Conn. 726, 750, 91 A.3d 862 (2014)
(‘‘[i]f defendant’s brief fails to . . . apply law to fact
. . . then claim likely will be deemed inadequately
briefed’’).
D
The defendant next alleges that the prosecutor
engaged in impropriety when she engaged in a ‘‘golden
rule’’ argument. We disagree.
The following additional facts are relevant to our
resolution of this claim. At closing argument, the prose-
cutor made the following statements: ‘‘To begin with,
if you weren’t drinking, if you weren’t driving, [and] an
officer starts to put you through field sobriety tests,
don’t you think you would be yelling, ‘I wasn’t driving,’
or ‘I wasn’t drinking,’ something to that effect?’’
(Emphasis added.) She continued: ‘‘[I]f you refuse [a
Breathalyzer] test your license may be suspended for
six months. Maybe you’re familiar with the public trans-
portation system, or lack thereof, in the northwest cor-
ner of Connecticut, but, ladies and gentlemen, if you’re
accused of operating under the influence, you’re pre-
sented with the opportunity to take a test, and you
refuse knowing that you’re giving up your license for six
months, why would you do that?’’ (Emphasis added.)
Finally, the prosecutor commented: ‘‘[I]f it was you,
how many times would you tell the officer ‘it wasn’t
me’?’’ (Emphasis added.)
‘‘[A] golden rule argument is one that urges jurors to
put themselves in a particular party’s place . . . or into
a particular party’s shoes. . . . Such arguments are
improper because they encourage the jury to depart
from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.
. . . They have also been equated to a request for sym-
pathy. . . . [T]he golden rule claims . . . [arise] when
the prosecutor ask[s] the [jurors] to put [themselves]
in the place of the victim, the victim’s family, or a
potential victim of the defendant. . . . The danger of
these types of arguments lies in their [tendency] to
pressure the jury to decide the issue of guilt or inno-
cence on considerations apart from the evidence of the
defendant’s culpability. . . . [Our Supreme Court] fur-
ther equated golden rule arguments with the more gen-
eral proscription on prosecutorial appeals to the jurors’
emotions. . . . [That court] has recognized on numer-
ous occasions that [a] prosecutor may not appeal to
the emotions, passions and prejudices of the jurors.
. . . [S]uch appeals should be avoided because they
have the effect of diverting the [jurors’] attention from
their duty to decide the case on the evidence.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Long, 293 Conn. 31, 53–54, 975 A.2d 660, 675 (2009).
Our Supreme Court, however, has previously held
that not all arguments that ask jurors to place them-
selves in a particular party’s situation implicate the
prohibition on golden rule argument. For example, in
State v. Bell, 283 Conn. 748, 773, 931 A.2d 198 (2007),
the court concluded that the prosecutor had not vio-
lated the prohibition against golden rule argument when
he ‘‘[asked] the jurors to draw inferences from the evi-
dence that had been presented at trial regarding the
actions of the defendant . . . based on the jurors’ judg-
ment of how a reasonable person would act under the
specified circumstances. . . . Thus, when the state’s
attorney asked the jurors to put themselves in the defen-
dant’s shoes . . . and to evaluate his actions, the
state’s attorney properly was asking them to infer the
defendant’s consciousness of guilt from his deceptive
actions . . . .’’ In such a situation, the prosecutor does
not implicate the prohibition on golden rule argument
because the ‘‘arguments [do] not appeal improperly to
the jurors’ emotions or exhort them to decide the case
on anything other than the evidence presented to them.’’
Id., 774.
Here, the prosecutor’s comments at closing argument
similarly requested that the jury draw inferences from
the evidence based on how a reasonable innocent per-
son would act under the circumstances. The defendant
has failed to establish how such comments appealed
to the jurors’ emotions or otherwise pressured them to
base their determination of guilt on something beyond
the evidence presented at trial.
E
The defendant next argues that the prosecutor stated
her personal opinion regarding his guilt. At trial, the
defendant’s witness, Balaam, testified that after driving
the vehicle he removed the keys from the ignition and
placed them in the vehicle’s center console. In the video
of the traffic stop entered into evidence at trial, Hazen
asked the defendant where the keys to the vehicle were,
and the defendant told him, ‘‘I threw [the keys] on the
floor.’’ Based on this evidence, the prosecutor argued
the following at closing argument: ‘‘Why would [the
defendant], if he wasn’t driving, take those keys from
the center console and throw them on the floor? I’d
just leave them in the center console, [if] he was not
driving, he didn’t have to touch the keys that night.’’
The defendant claims that this statement expressed the
prosecutor’s opinion of the defendant’s guilt. We
disagree.
‘‘It is well established that a prosecutor may argue
about the credibility of witnesses, as long as her asser-
tions are based on evidence presented at trial and rea-
sonable inferences that jurors might draw therefrom.
. . . Moreover, [i]n deciding cases . . . [j]urors are
not expected to lay aside matters of common knowl-
edge or their own observations and experiences, but
rather, to apply them to the facts as presented to arrive
at an intelligent and correct conclusion.’’ (Internal quo-
tation marks omitted.) State v. Ciullo, 314 Conn. 28,
45–46, 100 A.3d 779 (2014).
When the prosecutor stated that ‘‘I’d just leave [the
keys] in the center console,’’ she was not expressing
her personal opinion regarding the defendant’s guilt,
but rather was requesting that the jury members apply
their common knowledge in weighing the credibility of
the defendant’s witness. Such statements, when based
on the evidence and reasonable inferences drawn there-
from, are permissible and therefore do not constitute
impropriety by the prosecutor. State v. Lindo, 75 Conn.
App. 408, 416, 816 A.2d 641 (‘‘[r]emarks that are nothing
more than a permissible appeal to the jurors’ common
sense do not constitute prosecutorial [impropriety]’’),
cert. denied, 263 Conn. 917, 821 A.2d 771 (2003).
F
The defendant next argues that the prosecutor com-
mitted impropriety when she commented on a fact that
was not in evidence. At closing argument, while dis-
cussing the defendant’s refusal to take a Breathalyzer
test, the prosecutor stated: ‘‘[I]f you refuse the test,
your license may be suspended for six months. Maybe
you’re familiar with the public transportation system,
or lack thereof, in the northwest corner of Connecticut,
but ladies and gentlemen, if you’re accused of operating
under the influence, you’re presented with an opportu-
nity to take a test, and you refuse knowing your giving
up your license for six months, why would you do that?’’
(Emphasis added.) On appeal, the defendant argues
that references to public transportation in the area
amounted to impropriety as it was a comment on a fact
that was not in evidence. We disagree.
It is well established that a prosecutor may not com-
ment on evidence that is not a part of the record and may
not comment unfairly on the evidence in the record. See,
e.g., State v. Singh, 259 Conn. 693, 718, 793 A.2d 226
(2002). In the present case, the evidence established
that the defendant had ‘‘transportation issues,’’ often
borrowing his supervisor’s vehicle to transport himself
to and from work, and relying on his coworker to drive
him home from work. Further, ‘‘it is axiomatic that
jurors [i]n considering the evidence introduced in a
case . . . are not . . . expected to lay aside matters
of common knowledge or their own observations and
experience of the affairs of life . . . .’’ (Internal quota-
tion marks omitted.) State v. King, 289 Conn. 496, 521–
22, 958 A.2d 731 (2008). In the present case, the
prosecutor’s comment did not reference a fact not in
evidence. Rather, the comment simply urged the jurors,
who were citizens residing in that area of the state, to
apply their common knowledge and experience when
considering the evidence.
G
The defendant next alleges that the prosecutor
improperly misled the jury regarding two facts. First,
the defendant argues that the prosecutor incorrectly
stated at closing argument that ‘‘Hazen testified that
. . . he follows the vehicle seventy-five yards’’ when,
in fact, Hazen had testified that he approached the
defendant’s vehicle after it had already stopped. Sec-
ond, the defendant argues that the prosecutor incor-
rectly claimed that both Hazen’s vehicle and Barone’s
vehicle ‘‘were at a traffic stop with their lights on
. . . .’’ The defendant claims that this is inconsistent
with the testimony of Hazen, who stated affirmatively
that the lights on his vehicle were on, but could not
recall whether Barone’s lights were on. The state argues
that in both instances the prosecutor did not misstate
the facts. We agree.
The defendant fails to establish how the prosecutor’s
statements were misleading or otherwise incorrect.
First, the term ‘‘follow’’ does not necessarily mean that
Hazen had pursued the defendant’s vehicle while it was
still moving. The term ‘‘follow’’ could simply mean that
Hazen turned his car around, drove seventy-five yards,
and parked his vehicle behind the defendant’s. See Mer-
riam-Webster’s Collegiate Dictionary (11th Ed. 2003)
(defining ‘‘follow’’ in part as ‘‘to . . . come after’’). Sec-
ond, the prosecutor’s statement that ‘‘their lights [were]
on’’ was not a misstatement of the evidence. Hazen
testified that he was a backup trooper, assisting Barone
during a traffic stop. As the two troopers were working
in tandem, it was accurate to state that ‘‘their’’ lights
were on when they witnessed the defendant’s vehicle
make a U-turn and pull over to the side of the road.
H
Lastly, the defendant argues that the prosecutor
improperly implied that the defendant’s witness was a
liar, misstated the facts regarding the witness’s relation-
ship with the defendant, and provided a personal opin-
ion regarding the witness’s credibility. We disagree.
Although a prosecutor’s closing argument may not
include statements that purport to convey a personal
opinion as to the credibility of a witness, a prosecutor
may make statements based on reasonable inferences
the jury could draw from the evidence adduced at trial.
State v. Ciullo, supra, 314 Conn. 42. In the present
case, the prosecutor’s closing argument challenged the
credibility of the defendant’s witness, Balaam, who tes-
tified that he, rather than the defendant, was the driver
on the night in question. The prosecutor did not call
him a liar, but rather attacked his credibility solely on
the basis of reasonable inferences that could have been
drawn from the evidence. There was testimony from
Balaam, himself, that he was a convicted felon, that he
worked with the defendant, and that he spent time
socially with the defendant. At closing argument, the
prosecutor stated: ‘‘[Y]ou . . . need to think about
[Balaam’s] credibility. He is a convicted felon. And I’m
not saying that convicted felons are liars by any
account, but consider that on top of [the fact] that he
was a friend, an admitted friend of [the defendant].
They worked together, they visited together, socially,
and often.’’ This argument was permissible because it
‘‘posited a reasonable inference that the jury itself could
have drawn without access to the [prosecutor’s] per-
sonal knowledge of the case.’’ State v. Stevenson, supra,
269 Conn. 584. Accordingly, we find no merit to the
defendant’s claim that the prosecutor improperly com-
mented on Balaam’s testimony during closing
argument.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
The defendant performed the following three field sobriety tests: (1) the
horizontal gaze nystagmus test, (2) the ‘‘walk and turn’’ test, and (3) the
one leg stand test. The horizontal gaze nystagmus test required the defendant
to follow a moving point of reference. During this test, the administrator
is looking for nystagmus, which is defined as a specific involuntary eye
movement. The walk and turn test required the defendant to walk heel to
toe in a straight line for nine steps. The one leg stand test required the
defendant to lift one leg six inches off the ground and focus his eyes on
the raised foot. During these latter two tests, the administrator is evaluating
the subject’s balance and coordination.
3
At trial, Hazen read into the record the following notice of rights that
was read to the defendant after his arrest: ‘‘ ‘You are requested to submit
to a blood, breath or a urine test chosen by the police officer. You may
refuse a blood test, in which case another test will be selected. If you elect
to submit to testing, you will be required to provide two samples. If you
refuse to submit, the test will not be given. Your refusal will result in
a revocation of your operator’s license for twenty-four (24) hours and a
suspension of your operator’s license for at least six months. If you submit
to the test and the test results indicate that you have an elevated blood
alcohol content, your operator’s license will be revoked for twenty-four (24)
hours and you will be suspended for at least ninety (90) days. If you hold
a commercial driver’s license (CDL) your CDL will be disqualified for at
least one year. Furthermore, if you are operating a commercial motor vehicle
(CMV) and do not hold a CDL, your privilege to obtain a CDL as well as
your privilege to operate a commercial motor vehicle, will be disqualified
for at least one year. If you hold an operator’s license from a state other
than Connecticut, your driving privilege in Connecticut is subject to the
same revocation and suspension penalties. The result of the test or the
fact of a refusal may be admissible in evidence against you in a criminal
prosecution for driving under the influence of alcohol and/or drugs or other
offense, and evidence of a refusal may be used against you in any crimi-
nal prosecution.’’
4
The defendant pleaded guilty to violating § 14-227a (g) on the basis that
he had previously been convicted of driving under the influence of liquor
and was sentenced to an enhanced penalty.
5
On direct examination of Hazen, the following colloquy took place:
‘‘[State’s Attorney]: During the course of your interaction with [the defen-
dant] on that particular night, did he ever directly deny driving the vehicle
. . . ?
‘‘[Hazen]: He did not.
‘‘[State’s Attorney]: Did he ever reference [that] another individual was
driving?
‘‘[Hazen]: He did not.’’
On redirect examination, the following colloquy took place:
‘‘[State’s Attorney]: Before the video came on, you approached the opera-
tor and asked for what?
‘‘[Hazen]: Driver’s license, registration, and insurance.
‘‘[State’s Attorney]: And during that time, did [the defendant] say he was
not driving the vehicle?
‘‘[Hazen]: No.
‘‘[State’s Attorney]: Did he say somebody else was driving the vehicle?
‘‘[Hazen]: No.
‘‘[State’s Attorney]: Did he mention the name of anybody else who was
driving the vehicle?
‘‘[Hazen]: He did not.’’
6
‘‘[State’s Attorney]: At any time during your interaction with Mr. Devito,
did he tell you he was not driving?
‘‘[Holcombe]: No, he did not.
‘‘[State’s Attorney]: Did he tell you someone else was driving the vehicle?
‘‘[Holcombe]: No, he did not.’’
7
‘‘[State’s Attorney]: Do you recall if [the defendant] told you at any time
that he wasn’t driving?
‘‘[Barone]: No.
‘‘[State’s Attorney]: No, you don’t recall, or, no, he did not?
‘‘[Barone]: No, I don’t recall.’’
8
Although the defendant failed to object to the alleged improprieties at
trial, his claim nevertheless is reviewable. ‘‘[I]n cases involving incidents of
prosecutorial [impropriety] that were not objected to at trial . . . it is unnec-
essary for the defendant to seek to prevail under the specific requirements
of [Golding], and, similarly, it is unnecessary for a reviewing court to apply
the four-pronged Golding test. The reason for this is that the touchstone
for appellate review of claims of prosecutorial [impropriety] is a determina-
tion of whether the defendant was deprived of his right to a fair trial, and
this determination must involve the application of the factors set [forth] by
this court in State v. Williams, [supra, 204 Conn. 540].’’ (Internal quotation
marks omitted.) State v. Andrews, supra, 313 Conn. 280. ‘‘The application
of the Williams factors . . . is identical to the third and fourth prongs of
Golding, namely, [1] whether the constitutional violation exists, and [2]
whether it was harmful. . . . Requiring the application of both Williams
and Golding, therefore, would lead . . . to confusion and duplication of
effort. Furthermore, the application of the Golding test to unchallenged
incidents of [impropriety] tends to encourage analysis of each incident in
isolation from one another. Because the inquiry must involve the entire trial,
all incidents of [impropriety] must be viewed in relation to one another and
within the context of the entire trial. The object of inquiry before a reviewing
court in claims involving prosecutorial [impropriety], therefore, is always
and only the fairness of the entire trial, and not the specific incidents of
[impropriety] themselves. Application of the Williams factors provides for
such an analysis, and the specific Golding test, therefore, is superfluous.’’
(Citation omitted.) State v. Stevenson, supra, 269 Conn. 573–74.
9
We further note that, even if we were to review this claim under the
Williams factors, the defendant would be unable to establish how the prose-
cutor’s questions to the three officers constituted impropriety. Due process
violations, under Doyle, only apply to references to post-Miranda silence.
‘‘Because it is the Miranda warning itself that carries with it the promise
of protection, the United States Supreme Court has concluded that the
prosecution’s use of silence prior to the receipt of Miranda warnings does
not violate due process.’’ State v. Esposito, 223 Conn. 299, 319, 613 A.2d
242 (1992); see also part I of this opinion.