State v. Pjura ( 2020 )

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STATE OF CONNECTICUT v. JOHN PJURA
(AC 41869)
Prescott, Elgo and Devlin, Js.
Syllabus
The defendant, who had been convicted of the crimes of assault in the
second degree and larceny in the sixth degree, appealed to this court
from the judgment of the trial court, claiming that he was deprived of
his right to a fair trial because of prosecutorial impropriety and that
the evidence was insufficient to prove that he intended to cause the
victim, H, serious injury when he punched H in the head and fractured
his skull. The defendant had attempted to leave a shoe store with a pair
of sneakers he had not paid for. H, an assistant manager at the store,
and R, a cashier there, observed the defendant leave the store without
paying for the sneakers. H followed the defendant into a neighboring
store, where he confronted him and told him that he would not call the
police if he returned the sneakers. The defendant complied and, as they
headed back to the shoe store, H became uncomfortable and radioed
R to call the police. The defendant then used his dominant right hand
to punch H in the head with a closed fist, after which the defendant
fled in his car. D, a shopper at the neighboring store, heard the impact
of the punch about fifteen to twenty feet away. Held:
1. There was sufficient evidence from which the jury could have reasonably
found that the act of punching H directly in the head and with great
force was strongly corroborative of the defendant’s intention to cause
serious physical injury in an effort to facilitate his escape; the punch
caused a life-threatening injury, as it fractured H’s skull in multiple
places, rendered him unconscious and was heard by D fifteen to twenty
feet away, and, although the defendant claimed that his intent was not
to cause serious injury but to escape, he testified that he could have
shoved H in the chest, punched him in the stomach, tripped him or tried
running away rather than engaging in physical contact with H.
2. The defendant could not prevail on his claim that he was denied his right
to a fair trial as a result of prosecutorial impropriety, as none of the
challenged remarks was improper:
a. The prosecutor did not place evidence of the defendant’s postarrest
silence before the jury in violation of the trial court’s orders, as the
prosecutor asked C, a police detective, only about the defendant’s con-
duct in response to C’s request to photograph the defendant’s hands
during his detention by the police, the record was insufficient to deter-
mine if the prosecutor intended to elicit improper evidence as to postar-
rest silence, the question was open-ended, the type of evidence the
prosecutor attempted to elicit was ambiguous, the court issued no formal
ruling on a motion the defendant had filed to preclude evidence of his
postarrest silence and instructed the jury that questions by the attorneys
were not evidence; moreover, the prosecutor had a proper motive for
asking the defendant on cross-examination if he felt remorse about the
incident with H, as defense counsel’s questions to the defendant on
direct examination opened the door for the prosecutor’s follow-up ques-
tions, and the prosecutor had a good faith basis to ask the defendant
additional questions on recross-examination about his remorse, as the
court previously had permitted the prosecutor on cross-examination to
impeach the defendant’s credibility as to his purported remorse.
b. The prosecutor invited the jury to draw reasonable inferences from
the evidence and did not argue facts not in evidence during closing
argument about the defendant’s intent to cause H serious injury, as
defense counsel did not object to the prosecutor’s arguments, the defen-
dant’s testimony that he could have taken other action to get away and
avoid arrest instead of punching H in the head supported the prosecutor’s
arguments, the prosecutor’s arguments as to the defendant’s motivation
for shopping at H’s store were not presented to the jury as facts but,
instead, as a submission of a reasonable inferences the jury could draw
from the facts and evidence, and the prosecutor’s argument about the
differing accounts of the incident by H and the defendant merely asked
the jury to make a credibility determination.
c. The prosecutor did not frame his statements to the jury by suggesting
that it would need to find that R and D lied about the location of
the defendant’s punch in order to find the defendant not guilty: the
prosecutor’s statements, to which defense counsel did not object, asked
the jury to weigh the credibility of each witness and did not force the
jury to find the defendant not guilty only if first concluded that R and
D had lied; moreover, even if R and D had lied, the jury could have
found the defendant guilty on the basis of his testimony alone that he
punched H in the head.
(One judge concurring separately)
Argued May 22—officially released October 20, 2020
Procedural History
Substitute information charging the defendant with
one count each of the crimes of robbery in the first
degree and assault in the second degree, brought to the
Superior Court in the judicial district of Litchfield at
Torrington and tried to the jury before Danaher, J.;
verdict and judgment of guilty of assault in the second
degree and the lesser included offense of larceny in the
sixth degree, from which the defendant appealed to this
court. Affirmed.
James B. Streeto, assistant public defender, with
whom, on the brief, was MarcAnthony Bonanno, certi-
fied legal intern, for the appellant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were Dawn Gallo, state’s
attorney, and David R. Shannon, senior assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, John Pjura, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of assault in the second degree in
violation of General Statutes § 53a-60 (a) (1) and one
count of larceny in the sixth degree in violation of
General Statutes § 53a-125b. The defendant claims on
appeal (1) that there was insufficient evidence to prove
beyond a reasonable doubt that he intended to cause
serious physical injury to the victim, and (2) that he was
denied his right to a fair trial because the prosecutor
committed improprieties during the trial by (a)
attempting to place evidence of the defendant’s postar-
rest silence before the jury, (b) arguing facts not in
evidence, and (c) arguing to the jury that, in order to
find the defendant not guilty, it would have to find that
two eyewitnesses and the victim were lying. We affirm
the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
discussion. On September 11, 2016, the defendant
attended church with his girlfriend, her son, and her
friends, Kim Barnard and Jay Barnard. At some point,
Kim Barnard came up with the idea of going to a fair
in Bethlehem. The defendant was reluctant to go to the
fair because he had a hole in his shoes and was not
comfortable with the idea of walking around a muddy
fairground with them. Upon hearing this, Kim Barnard
suggested that the defendant buy new shoes at a nearby
Payless Shoes store. The defendant did not have the
ability to pay for his own shoes, so Kim Barnard gave the
defendant’s girlfriend her credit card so the defendant
could buy shoes.
Following the church service, the defendant left with
his girlfriend and her son to buy some sneakers. They
went to the Famous Footwear store in Torrington. The
defendant found a pair of sneakers he liked, and he
tried them on. The defendant believed that he could
sneak out of the store without paying for the sneakers.
To accomplish this, he put his old shoes into the shoe
box, left the store, and entered the neighboring Tar-
get store.
The victim, Andrew Howe, an assistant store manager
at Famous Footwear, observed the defendant trying on
the shoes. He then saw the defendant put his old shoes
into the shoe box and place the box back on the shelf.
The victim and Anna Rogers, a cashier, saw the defen-
dant leave the store without paying for the sneakers.
The victim followed the defendant out of the store and
into Target. He confronted the defendant, told him that
there were cameras everywhere within the store and
that if the defendant returned the stolen shoes that he
would not call the police. The defendant complied with
the victim’s directions, and the two headed back to
Famous Footwear without a struggle or argument.
While heading back to the store, however, the victim,
sensing that the mood had changed, became uncomfort-
able and radioed Rogers to call the police. The defen-
dant then punched the victim in the head with his domi-
nant right hand, sprinted to his vehicle, and drove away.
The force of the punch was so strong that Mark Dales-
sandro, a shopper at Target, heard its impact from
approximately fifteen to twenty feet away. The victim
was unable to brace himself and immediately collapsed
to the ground. He suffered serious injuries, including a
depressed skull fracture and a subarachnoid hemor-
rhage. He underwent surgery to reconstruct his skull.
As a result of his injuries, he had to relearn to walk
and to talk and was unable to drive.
After the incident, Torrington police sent out a ‘‘be
on the lookout’’ alert with a description of the suspect.
They also published a photograph of the suspect on
their Facebook page. On September 18, 2016, several
members from the Barnards’ church approached Jay
Barnard with the photograph of the suspect from the
Facebook page. Jay Barnard recognized the defendant
from the photograph. He confronted the defendant later
that day and asked him either to turn himself in to the
police or to clear up the matter. The defendant denied
that the photograph was of him. Following this conver-
sation, the defendant began walking in the direction of
the police department. He did not, however, turn him-
self in to the police and instead began wandering around
the area.
Later that day, the Torrington police were dispatched
after a concerned citizen reported the presence of a
suspicious person in her backyard. The police located
the defendant, but he managed to flee from them. Later
that evening, the Torrington police were dispatched to
a house where a suspicious person was reported to have
been sleeping on a pantry floor. The officers located the
suspicious person, who was identified as the defendant,
and arrested him.
The defendant was charged with robbery in the first
degree in violation of General Statutes § 53a-134 (a) (1)
and assault in the second degree in violation of § 53a-
60 (a) (1). The jury found the defendant not guilty of
robbery but returned a guilty verdict on the lesser
included offense of larceny in the sixth degree. The jury
also found the defendant guilty of assault in the second
degree. The court, Danaher, J., sentenced the defendant
to six years of imprisonment. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant first claims that there was insufficient
evidence to prove beyond a reasonable doubt that he
intended to cause serious physical injury to the victim.
Specifically, the defendant asserts that there was no
direct or circumstantial evidence from which the jury
reasonably could infer that he acted with the necessary
intent. The defendant further argues that the evidence
established only his intent to flee the scene to avoid
being taken into police custody. We disagree.
We begin our analysis with the well established stan-
dard of review for assessing an insufficiency of the
evidence claim. ‘‘In reviewing the sufficiency of the
evidence to support a criminal conviction we apply a
[two part] test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt.’’ (Internal quota-
tion marks omitted.) State v. Papandrea, 302 Conn. 340,
348–49, 26 A.3d 75 (2011).
‘‘A person is guilty of assault in the second degree
when: (1) With intent to cause serious physical injury
to another person, the actor causes such injury to such
person or to a third person . . . .’’ General Statutes
§ 53a-60 (a). ‘‘Serious physical injury’’ is statutorily
defined as ‘‘physical injury which creates a substantial
risk of death, or which causes serious disfigurement,
serious impairment of health or serious loss or impair-
ment of the function of any bodily organ . . . .’’ Gen-
eral Statutes § 53a-3 (4). ‘‘Assault in the second degree
under § 53a–60 (a) (1) is a specific intent, rather than
a general intent, crime.’’ State v. Perugini, 153 Conn.
App. 773, 780 n.7, 107 A.3d 435 (2014), cert. denied, 315
Conn. 911, 106 A.3d 305 (2015). ‘‘Intent is a question of
fact, the determination of which should stand unless
the conclusion drawn by the trier is an unreasonable
one. . . . [T]he [jury is] not bound to accept as true
the defendant’s claim of lack of intent or his explanation
of why he lacked intent. . . . Intent may be, and usu-
ally is, inferred from the defendant’s verbal or physical
conduct. . . . Intent may also be inferred from the sur-
rounding circumstances. . . . The use of inferences
based on circumstantial evidence is necessary because
direct evidence of the accused’s state of mind is rarely
available. . . . Intent may be gleaned from circumstan-
tial evidence such as the type of weapon used, the
manner in which it was used, the type of wound inflicted
and the events leading up to and immediately following
the incident. . . . Furthermore, it is a permissible,
albeit not a necessary or mandatory, inference that a
defendant intended the natural consequences of his
voluntary conduct.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Andrews, 114 Conn. App.
738, 744–45, 971 A.2d 63, cert. denied, 293 Conn. 901,
975 A.2d 1277 (2009).
Next, we examine the circumstantial evidence pre-
sented at trial from which the state contends a jury
reasonably could infer that the defendant punched the
victim with the intent to cause serious injury. The victim
caught the defendant stealing the sneakers from
Famous Footwear and instructed him to return them.
While heading back to the store, the defendant became
fearful of the prospect of going to jail and wanted to flee
to evade responsibility for his actions. The defendant
believed that the victim would continue to follow him
if he tried to continue walking. As a result, the defendant
threw a closed-fisted punch at the victim’s head with
his dominant right hand and fled the scene. The sound
of the punch was audible to a bystander standing fifteen
to twenty feet away. The punch was so hard that it
knocked the victim unconscious and caused him to
collapse to the ground without the ability to brace him-
self. The punch fractured the victim’s skull in multiple
places and was a life-threatening injury. Given these
facts presented at trial, the jury reasonably could have
found that the act of punching the victim directly and
with great force in the head is strongly corroborative
of an intention to cause serious physical injury. See
State v. Mendez, 154 Conn. App. 271, 279, 105 A.3d 917
(2014) (rejecting defendant’s insufficiency of evidence
claim and holding that jury could have reasonably
inferred that defendant intended to cause serious physi-
cal injury when defendant punched victim in jaw).
The defendant further argues that when he punched
the victim, his intent was not to cause serious physical
injury but, rather, that his sole intent was to escape.
We are not persuaded. ‘‘The existence of an intent to
escape does not necessarily negate the existence of an
intent to cause serious physical injury when making
the escape.’’ State v. Andrews, supra, 114 Conn. App.
746. Under the factual circumstances of this case, the
jury reasonably could have inferred that the defendant
intended to cause the victim serious physical injury in
an effort to facilitate his escape. The defendant testified
that he intended only to avoid capture when he punched
the victim. He also admitted, however, that he could
have tried shoving the victim in the chest, punching
him in the stomach, or tripping him to avoid going to
jail. He further stated that he could have tried running
away rather than engaging in any physical contact with
the victim, although he noted that the victim might have
chased him if he attempted to flee because the victim
appeared to be in good shape. From these facts, the
jury reasonably could infer that the defendant believed
it necessary to severely injure the victim in order to
escape successfully. Such evidence permits a reason-
able inference that, while the defendant was contem-
plating fleeing in order to avoid police involvement, he
made an intentional decision to punch the victim in the
head with great force in order to effectuate his escape.
See id. (evidence permitted reasonable inference that
defendant made intentional decision to turn car in direc-
tion of victim and to drive directly at him with intent
to cause serious physical injury when attempting to
escape). We therefore conclude that there was suffi-
cient evidence from which the jury could have reason-
ably found that the defendant intended to cause serious
physical injury to the victim.
II
The defendant next claims that he was denied his
right to a fair trial because the prosecutor committed
improprieties during the trial by (1) attempting to place
evidence of the defendant’s postarrest silence before
the jury, (2) arguing facts not in evidence, and (3)
arguing to the jury that in order to find the defendant
not guilty, it would have to find that two eyewitnesses
and the victim were lying. Because we conclude that
none of the challenged remarks was improper, we reject
the defendant’s claim.1
‘‘The standard we apply to claims of prosecutorial
impropriety is well established. In analyzing claims of
prosecutorial impropriety, we engage in a two step ana-
lytical process. . . . The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry. . . . [If] a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show . . .
that the remarks were improper . . . .’’ (Internal quota-
tion marks omitted.) State v. Brett B., 186 Conn. App.
563, 573, 200 A.3d 706 (2018), cert. denied, 330 Conn.
961, 199 A.3d 560 (2019). ‘‘The defendant also has the
burden to show that, considered in light of the whole
trial, the improprieties were so egregious that they
amounted to a denial of due process.’’ (Internal quota-
tion marks omitted.) Id.
‘‘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.’’ (Internal quo-
tation marks omitted.) State v. Rios, 171 Conn. App. 1,
52, 156 A.3d 18, cert. denied, 325 Conn. 914, 159 A.3d
232 (2017). With these principles in mind, we turn to
whether the prosecutor’s challenged remarks in the
present case were improper.
A
The defendant first contends that the prosecutor
improperly attempted to elicit evidence of the defen-
dant’s postarrest silence in direct violation of prior
orders or rulings of the court that the state would not be
permitted to question witnesses about the defendant’s
postarrest silence. Specifically, the defendant argues
that the prosecutor violated these orders during his
examination of Detective James Crean, who testified
regarding the defendant’s arrest and detention with the
police, and during the prosecutor’s cross-examination
of the defendant in which he asked the defendant about
whether he felt any remorse following the incident. The
state responds that no impropriety occurred because
the question to Detective Crean was open-ended, no
answer was suggested, and no answer was elicited.
Moreover, the state contends that defense counsel
opened the door to the topic of remorse during direct
examination, and that the prosecutor had a good faith
basis for asking those questions due to the defendant’s
testimony on direct and redirect examination. On the
basis of our review of the challenged remarks, we con-
clude that the prosecutor’s conduct did not rise to the
level of an impropriety.
The following additional facts are relevant to this
claim. Prior to trial, the defendant filed a motion in
limine seeking to bar the state from eliciting evidence
of the defendant’s postarrest silence pursuant to Doyle
v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91
(1976). The prosecutor acquiesced and indicated that
he did not intend to offer such evidence. He stated that
he intended to offer only evidence that the defendant
initially failed to comply with Detective Crean’s request
to photograph his hands. The prosecutor further repre-
sented that he intended to ask Detective Crean ques-
tions relating only to the defendant’s conduct, rather
than any statements he made or did not make. In light
of the prosecutor’s representation, the court did not
enter an order on the defendant’s motion in limine,
stating that ‘‘no other action is necessary regarding
this motion.’’
During the state’s presentation of evidence, the prose-
cutor called Detective Crean to testify. During Detective
Crean’s direct examination, the prosecutor asked,
‘‘[w]ell, did you attempt to speak with—did you attempt
to interview [the defendant]?’’ Defense counsel immedi-
ately objected to this question and asked to approach
the bench. After a sidebar discussion, questioning
resumed without the prosecutor pursuing the question
to which counsel had objected, from which it can be
inferred that the court sustained the objection. In any
event, no answer was ever provided in response to the
objectionable question.
With respect to the issue of the defendant’s remorse,
defense counsel, during her direct examination of the
defendant, asked him what his reaction was when he
learned of the extent of the victim’s injuries after he
had been arrested. The defendant responded that he
was ‘‘[d]evastated’’ and ‘‘shocked’’ because he ‘‘didn’t
think that [he] could ever do that much damage, it’s
crazy.’’ On cross-examination, the prosecutor followed
up on this testimony by asking, ‘‘[n]ow, you would agree
with me, in regard to that video, you showed no signs
of remorse in a sense you didn’t look back to see if
he was okay, right?’’ Defense counsel objected to that
question, and the prosecutor responded that his ques-
tion was meant to impeach the credibility of the defen-
dant’s purported remorse. The court overruled the
objection. The prosecutor then posed the question
again, and the defendant responded, ‘‘I just wanted to
get away at that point, I was just scared, I just ran to
the car.’’
On redirect examination, defense counsel asked the
defendant if he had any remorse for his actions, and the
defendant answered, ‘‘I’m deeply, deeply sorry about
it. And I would never wish that upon anybody.’’ On
recross-examination, the prosecutor returned to this
subject by asking the defendant, ‘‘at what point in time
did you apologize to the manager?’’ The court sustained
an objection to this question. The prosecutor then
asked, ‘‘[a]nd don’t answer this, there may be an objec-
tion; did you ever apologize to the manager?’’ The court
sustained an additional objection, and then issued a
limiting instruction to the jury regarding the questions
concerning the defendant’s remorse.2
It ‘‘is well settled that prosecutorial disobedience of a
trial court order, even one that the prosecutor considers
legally incorrect, constitutes improper conduct. . . .
In many cases, however, this black letter principle is
easier stated than applied. A prosecutor’s advocacy
obligations may occasionally drive him or her close to
the line drawn by a trial court order regarding the use of
certain evidence.’’ (Citation omitted; internal quotation
marks omitted.) State v. O’Brien-Veader, 318 Conn. 514,
533, 122 A.3d 555 (2015). ‘‘Even when it is determined
that a prosecutor has breached a trial court order, it can
be difficult to distinguish between a mere evidentiary
misstep and a potential due process violation. . . . Not
every misstep by a prosecutor that exceeds the bounds
of a trial court order rises to the level of prosecutorial
impropriety that implicates a defendant’s due process
rights, thus requiring resort to the second step in the
prosecutorial impropriety analysis.’’ Id., 534. ‘‘Whether
a prosecutorial question or comment that runs afoul of
a trial court order implicates a defendant’s due process
rights is a case specific determination. This determina-
tion turns on the degree to which the breach under-
mines a trial court’s ruling that protects the integrity
of the fact-finding process by restricting the admission
of unreliable or unduly prejudicial evidence.’’ Id.
We turn first to the defendant’s argument that the
prosecutor committed an impropriety by asking Detec-
tive Crean if he had interviewed the defendant. We
conclude that the objectionable question posed by the
prosecutor, under the circumstances here, did not con-
stitute impropriety.
We note at the outset that there was no formal order
on the defendant’s motion in limine. On the basis of
the prosecutor’s representation that he intended to offer
only evidence of the defendant’s conduct in response
to Detective Crean’s request to photograph his hands,
the court concluded that no further action was neces-
sary on the motion in limine. Any attempt by the prose-
cutor to ask a question eliciting evidence of the defen-
dant’s postarrest silence, albeit objectionable, would
thus not constitute a direct violation of a court order.
‘‘It would be a rare trial, indeed, if counsel for one
side or the other did not pose an objectionable question
. . . . Our rules of practice provide a means to prevent
improper questions from being answered. The rules of
practice [work] . . . when defense counsel’s objection
to [a] question [is] sustained by the court.’’ State v.
Camacho, 92 Conn. App. 271, 297, 884 A.2d 1038 (2005),
cert. denied, 276 Conn. 935, 891 A.2d 1 (2006). In the
present case, defense counsel immediately objected to
the challenged question, which resulted in a sidebar
during which the court either sustained the objection
or the prosecutor agreed to withdraw the question. The
court also issued general instructions to the jury at the
start of trial and after closing arguments in which it
emphasized that questions, objections, arguments, and
statements made by the attorneys were not evidence.
Because we presume that jurors ‘‘follow the instruc-
tions given by a judge,’’ we assume that the jury did
not consider this question as evidence during its deliber-
ation. (Internal quotation marks omitted.) State v.
Perez, 147 Conn. App. 53, 111, 80 A.3d 103 (2013), aff’d,
322 Conn. 118, 139 A.3d 654 (2016). Accordingly, the
prosecutor’s question did not result in the jury hearing
any evidence regarding the defendant’s postarrest
silence.3 Moreover, the prosecutor immediately turned
to a different subject and did not ask additional ques-
tions that risked eliciting evidence regarding the defen-
dant’s postarrest silence.
Additionally, it is unclear whether the prosecutor
intended to elicit evidence regarding the defendant’s
postarrest silence by asking the challenged question to
Detective Crean. The prosecutor’s question was open-
ended, and the type of evidence that he was attempting
to elicit from Detective Crean was ambiguous. Although
there is no direct evidence of the prosecutor’s intent,
it is possible that the prosecutor had a tangible, good
faith basis for asking the question. For example, the
prosecutor had indicated at the hearing on the motion
in limine that he intended to elicit testimony regarding
the defendant’s conduct in response to Detective
Crean’s request to photograph his hands. It is thus possi-
ble that the question regarding whether Crean had inter-
viewed the defendant was nothing more than a poorly
phrased and ill-advised attempt to place a legitimate
line of inquiry before the jury.4 The prosecutor, there-
fore, may not necessarily have had any improper motive
for asking such a question. Indeed, this is not a case
in which we have direct evidence of the prosecutor’s
intent to ask a question in direct violation of a court
order. See State v. Reynolds, 118 Conn. App. 278, 293,
983 A.2d 874 (2009) (concluding that prosecutor’s ques-
tions improperly violated trial court order because pros-
ecutor’s representations to court revealed that she
intended to elicit evidence court had expressly disal-
lowed), cert. denied, 294 Conn. 933, 987 A.2d 1029
(2010). On the basis of the record, we have no way of
determining the prosecutor’s actual motive for asking
this question, and we need not engage in needless spec-
ulation as to the reason the objectionable question was
asked in the absence of direct evidence of the prosecu-
tor’s intent. See State v. Camacho, supra, 92 Conn. App.
297. Because the record is unclear as to what the prose-
cutor’s motive was for asking the challenged question,
the record is insufficient to determine whether the pros-
ecutor was attempting to elicit improper evidence
regarding the defendant’s postarrest silence.5
We next turn to the defendant’s contention that the
prosecutor’s questions regarding the defendant’s remorse
were improper. ‘‘Generally, a party who delves into a par-
ticular subject during the examination of a witness can-
not object if the opposing party later questions the wit-
ness on the same subject. . . . The party who initiates
discussion on the issue is said to have opened the door
to rebuttal by the opposing party. Even though the
rebuttal evidence would ordinarily be inadmissible on
other grounds, the court may, in its discretion, allow it
where the party initiating inquiry has made unfair use
of the evidence. . . . This rule operates to prevent a
defendant from successfully excluding inadmissible
prosecution evidence and then selectively introducing
pieces of this evidence for his own advantage, without
allowing the prosecution to place the evidence in its
proper context. . . . The doctrine of opening the door
cannot, of course, be subverted into a rule for injection
of prejudice. . . . The trial court must carefully con-
sider whether the circumstances of the case warrant
further inquiry into the subject matter, and should per-
mit it only to the extent necessary to remove any unfair
prejudice which might otherwise have ensued from the
original evidence. . . . Thus, in making its determina-
tion, the trial court should balance the harm to the state
in restricting the inquiry with the prejudice suffered
by the defendant in allowing the rebuttal.’’ (Internal
quotation marks omitted.) State v. Brown, 309 Conn.
469, 479, 72 A.3d 48 (2013).
Here, the defendant, when asked during direct exami-
nation by his counsel about his reaction to learning the
extent of the victim’s injuries, testified that he was
‘‘[d]evastated’’ and ‘‘shocked.’’ Such testimony opened
the door for the prosecutor to ask him follow-up ques-
tions about his remorse. In response to an objection
from defense counsel, the prosecutor stated that his
question was meant to examine the credibility of the
defendant’s purported remorse. It is thus clear from
the record that the prosecutor had a proper motive
for asking the defendant about his remorse for this
particular question and that he was not attempting to
elicit evidence of the defendant’s postarrest silence. As
a result, it cannot be said that he acted improperly in
asking this question.
Although the trial court later sustained defense coun-
sel’s objections to two additional questions asked by
the prosecutor during recross-examination regarding
the defendant’s remorse, when considered in context,
neither of these questions constitutes prosecutorial
impropriety. The issue of remorse arose again during
the redirect examination of the defendant, and the pros-
ecutor’s questions on recross-examination were in
direct response to that testimony. Although the court
ultimately sustained the objections to the questions, we
conclude that the prosecutor did not engage in impro-
priety by asking them, particularly in light of the fact
that the court had earlier permitted the prosecutor to
impeach the defendant’s credibility as to his purported
remorse during cross-examination.
During argument conducted in the absence of the
jury, defense counsel asked the court to issue a curative
instruction as to the prosecutor’s questions concerning
remorse. In response, the prosecutor told the court that
he believed his questions during recross-examination
were fair game because the defendant had testified that
he was remorseful and that he was merely trying to
test the defendant’s credibility in making these state-
ments. On the basis of these representations, and the
consideration that the defendant had opened the door
to the issue of his remorse on direct and redirect exami-
nation, the prosecutor had a good faith basis for asking
additional questions on the subject. See Edwards v.
Commissioner of Correction, 141 Conn. App. 430, 441,
63 A.3d 540 (no prosecutorial impropriety when pros-
ecutor had good faith basis for asking questions to
impeach defendant’s credibility), cert. denied, 308 Conn.
940, 66 A.3d 882 (2013). Accordingly, the prosecutor’s
questioning did not constitute impropriety because he had
good faith reasons for asking these questions and was
not trying to improperly elicit evidence of the defendant’s
postarrest silence. In light of these considerations, we con-
clude that none of the prosecutor’s questions concerning
the defendant’s remorse were improper.
In sum, we conclude (1) that no improper evidence
was presented to the jury when the prosecutor asked
Detective Crean if he had attempted to interview the
defendant, (2) that the record is unclear regarding
whether the prosecutor intended to offer evidence of
the defendant’s postarrest silence, (3) that, even if we
assume that the question was improper, the defendant
was not deprived of his due process right to a fair trial,
and (4) that the prosecutor’s questions concerning the
defendant’s remorse were not improper. Therefore, we
conclude that the prosecutor did not improperly place
evidence concerning the defendant’s postarrest silence
before the jury.
B
We next turn to the defendant’s contention that the
prosecutor engaged in impropriety by arguing facts not
in evidence during his closing argument and rebuttal.
Specifically, the defendant claims that the prosecutor
argued facts not in evidence during his closing argument
by (1) speculating about what the defendant could have
done to evade arrest instead of punching the victim in
the head, (2) arguing that the defendant knew he had
to do something serious to get away from the victim
and that he could strike the victim to accomplish this,
(3) arguing that the defendant stole the sneakers
because he wanted the new, popular model that he
took, and (4) distorting the facts by arguing to the jury
that the victim’s and the defendant’s accounts of what
happened as they walked back to Famous Footwear
from Target contradicted each other. The state argues
in response that the prosecutor did not argue facts
not in evidence and instead urged the jury to draw
reasonable inferences from the evidence presented at
trial. We are not persuaded that the prosecutor’s
remarks were improper.
The following additional facts are relevant to our
consideration of this aspect of the defendant’s prosecu-
torial impropriety claim. During trial, the victim testified
that, after he witnessed the defendant stealing the
shoes, he followed him into Target, confronted him,
and the defendant agreed to return to Famous Footwear
with him. On the walk back, he told the defendant that
he would not call the police if the defendant returned
the shoes, and that he could retrieve his old shoes. The
victim also testified that the brand of Nike shoes that
the defendant took were new and in demand. Rogers
further testified that the shoes at Famous Footwear
were generally more expensive than those at the Payless
Shoes store. The defendant later testified, however, that
he did not recall passing a Payless Shoes store when
he was trying to find a place to purchase sneakers, and
that he decided to go to Famous Footwear first because
he figured, on the basis of the store’s name, that it sold
shoes. The defendant stated that, prior to the date of
the incident, he had never heard of Famous Footwear.
The issue of the defendant’s intent to cause serious
physical injury to the victim arose later during cross-
examination. On cross-examination, the defendant tes-
tified that, after he agreed to return to Famous Foot-
wear with the victim, he kept pleading with the victim
to let him return the shoes he stole and asked to have
his old shoes back. Although the defendant and the
victim proceeded back to Famous Footwear amicably
at first, the victim then radioed Rogers, asking her to
call the police, and the defendant reacted by punching
the victim in the head. The defendant testified that he
intended only to avoid capture when he punched the
victim. As previously discussed, the defendant also
admitted during cross-examination that he could have
tried shoving the victim in the chest, punching him in
the stomach, tripping him, or simply running away to
avoid going to jail. The defendant testified, however,
that the victim might have chased him if he attempted
to flee because the victim appeared to be in good shape.
During closing argument, the prosecutor revisited
this theme, and made the following comments to the
jury: ‘‘And when you deliberate to reach your verdict
on that and you consider that element, did he intend
to cause serious physical injury, just go through all the
question[s] I asked him. What he could have done, he
could have pushed him, he could have shoved him, he
could [have] just tried to run away with the sneakers,
he could have punched him in his stomach. I didn’t ask
him, but I think it’s common sense, he could have kicked
him in the groin, right? So, there’s a lot of things he
could have done but, instead, he chose to close his right
fist, his dominant hand, his strong hand, he chose to
throw a punch, he chose to throw that punch at his
skull . . . . He knew that walking away wasn’t enough
to get away with the sneakers, he knew that he had to
do something to seriously take [the victim] out of the
equation, and that’s what he did.’’ The prosecutor also
argued that, ‘‘the state submits to you, the reasonable
inference that you can draw from the facts and the
evidence, is that he didn’t want to shop at Payless, he
didn’t want the knockoff or off brands sold by Payless,
he wanted to go to pay more, Famous Footwear, and
that’s where they went. He wanted the Nike SBs, the
new hot sneaker.’’
During his rebuttal argument, the prosecutor made
additional arguments concerning the defendant’s intent
to cause serious physical injury and the defendant’s
credibility. First, the prosecutor followed up on the
theme that the defendant knew he needed to use signifi-
cant force to escape from the victim by stating that ‘‘[the
defendant] knew he could strike [the victim], knock
him unconscious and get out of there.’’ Second, the
prosecutor attempted to bring the defendant’s credibil-
ity into question by comparing his version of the events
with the victim’s. Specifically, the prosecutor noted that
‘‘[the defendant] says he pleaded with [the victim], just
give me my old sneakers back. And [the victim] says
the opposite. [The victim] says, I said to him, just come
back to the store, give me your sneakers, give me those
sneakers, I’ll give you your sneakers, I don’t have to call
the police. So, who do you believe there? The defendant
who testified he—obviously, the outcome of this case is
important to him. Or [the victim] who said, I remember
saying, ‘call the police,’ and I woke up in Hartford Hospi-
tal. That was, really, the sum and substance of his testi-
mony. Who do you believe there? Whose version of
events do you believe?’’ The defendant did not object
to any aspect of the prosecutor’s closing or rebuttal
arguments.
‘‘Certainly, prosecutorial [impropriety] of a constitu-
tional magnitude can occur in the course of closing
arguments. . . . 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.’’ (Internal
quotation marks omitted.) State v. Brett B., supra, 186
Conn. App. 573–74. In fulfilling his duties, however, a
prosecutor ‘‘must confine himself to the evidence in
the record. . . . [A] lawyer shall not . . . [a]ssert his
personal knowledge of the facts in issue, except when
testifying as a witness. . . . Statements as to facts that
have not been proven amount to unsworn testimony,
which is not the subject of proper closing argument.
. . . Our case law reflects the expectation that jurors
will not only weigh conflicting evidence and resolve
issues of credibility as they resolve factual issues, but
also that they will consider evidence on the basis of
their common sense. Jurors are not expected to lay
aside matters of common knowledge or their own
observation and experience of the affairs of life, but,
on the contrary, to apply them to the evidence or facts
in hand, to the end that their action may be intelligent
and their conclusions correct. . . . A prosecutor may
invite the jury to draw reasonable inferences from the
evidence; however, he or she may not invite sheer spec-
ulation unconnected to evidence.’’ (Citation omitted;
internal quotation marks omitted.) State v. Marrero,
198 Conn. App. 90, 119, A.3d (2020).
We agree with the state that the prosecutor’s com-
ments invited the jury to draw reasonable inferences
from the evidence presented at trial rather than arguing
facts not in evidence. We note at the outset that defense
counsel failed to object to any aspect of the prosecutor’s
closing argument. ‘‘A defendant’s failure to object to
an alleged impropriety strongly suggests that his coun-
sel did not perceive the argument to be improper. If
counsel did not believe that the argument was improper
at the time, it is difficult for this court, on review, to
reach a contrary conclusion.’’ Id., 121–22. ‘‘We empha-
size the responsibility of defense counsel, at the very
least, to object to perceived prosecutorial improprieties
as they occur at trial, and we continue to adhere to the
well established maxim that defense counsel’s failure
to object to the prosecutor’s argument when it was
made suggests that defense counsel did not believe that
it was unfair in light of the record of the case at the
time.’’ (Internal quotation marks omitted.) Id., 122.
Accordingly, the failure of defense counsel to object to
the prosecutor’s closing arguments indicates that she
did not perceive his arguments to be unfair.
Additionally, there was ample evidence presented at
trial to support the prosecutor’s arguments. In response
to the prosecutor’s questions, the defendant expressly
admitted that he could have tried shoving the victim,
tripping him, or punching him in the stomach in order
to get away and evade arrest. He also testified that,
although he could have tried running away rather than
engaging in any physical contact with the victim, the
victim might have chased him if he attempted to flee
because the victim appeared to be in good shape. The
prosecutor, in discussing the defendant’s intent to cause
serious physical injury to the victim during his closing
argument, reiterated these themes. Rather than engag-
ing in speculation unconnected to the evidence pro-
duced at trial, the prosecutor was instead inviting the
jury to draw the reasonable inference that the defendant
intended to cause serious physical injury to the victim
because he chose to initiate the type of direct physical
contact that was more likely to cause such injury. The
prosecutor’s comments were, therefore, proper.
Furthermore, the prosecutor’s comments concerning
the defendant’s motivation for shopping at Famous
Footwear were also derived from the evidence.
Although the defendant testified that he had never heard
of Famous Footwear, the prosecutor introduced evi-
dence that the retail prices of shoes at Famous Foot-
wear were generally higher than those at Payless Shoes
and that the sneakers the defendant took, Nike SBs,
were popular and in demand at the time of the incident.
On the basis of this evidence, the prosecutor argued to
the jury that the defendant wanted to shop at Famous
Footwear because he wanted to pay more and that he
wanted the new popular sneaker. The prosecutor did
not present these statements as established facts and,
instead, noted that he was ‘‘submitting’’ them to the
jury as a reasonable inference it could draw from the
facts and the evidence. The ‘‘submitting’’ language,
along with appropriate evidence produced at trial from
which the jury could have reasonably inferred the prose-
cutor’s submission, indicates that the prosecutor was
not arguing facts not in evidence. See Williams v. Com-
missioner of Correction, 169 Conn. App. 776, 787, 153
A.3d 656 (2016) (prosecutor’s use of restrictive ‘‘I sub-
mit’’ language indicated that he was raising inferences
rather than expressing his own opinion or providing
facts not in evidence). We thus conclude that such com-
ments were not improper.
Finally, contrary to the defendant’s contention, we
conclude that the prosecutor did not engage in impro-
priety by arguing to the jury that the victim’s and the
defendant’s accounts of what happened as they walked
back to Famous Footwear from Target were contradic-
tory. The victim testified that he told the defendant that
he would not call the police if the defendant returned
the sneakers that he had taken. In contrast, the defen-
dant testified that he had been the one to raise the issue
of returning the sneakers without police involvement.
Thus, although both accounts were similar in content,
they differ on the issue of who stated that no police
involvement was necessary if the defendant returned
the sneakers and took back his old ones. By noting that
the accounts were opposites and asking the jurors to
assess which version they believed, the prosecutor was
merely asking the jury to make a credibility determina-
tion on the basis of the testimony of the victim and the
defendant. We therefore conclude that these comments
were not improper.
C
Finally, the defendant contends that the prosecutor
engaged in impropriety by arguing to the jury that, in
order to find the defendant not guilty, it would have to
find that two eyewitnesses and the victim were lying,
in violation of State v. Singh, 259 Conn. 693, 793 A.2d
226 (2002). We do not agree.
The following additional facts are relevant to this
claim. During closing argument, defense counsel high-
lighted an inconsistency in the testimony of some of the
state’s witnesses. Specifically, Rogers and Dalessandro
told the police after the incident that the defendant had
punched the victim in the face, but Rogers later testified
at trial that the defendant hit the victim in the head. On
rebuttal, the prosecutor responded to defense counsel’s
argument by remarking, ‘‘[t]he first thing I’ll say is, if
the punch was to the face, why are there no injuries
to the face? You heard the doctor testify there was a
small hematoma in the area of where the fracture was,
that’s where the punch was. So, a seventeen year old
girl and Mr. Dalessandro tell the police what they saw,
the police write it out and they sign it. And they say
the punch was in the face, but now they come here and
say it was in the head. Are they lying? Does that call
their credibility into question in your minds? We’ll talk
about credibility in a minute, but that is a nonissue.’’
When later discussing the witnesses’ credibility, the
prosecutor stated: ‘‘And when you assess credibility,
remember [the defendant] took the [witness] stand;
were Dalessandro and Anna Rogers, were they lying
about what they saw? Yes, assess their credibility, but
assess his as well.’’ As previously observed, the prosecu-
tor also commented on the defendant’s and the victim’s
accounts of the incident, stating that their versions were
opposites and asking the jurors whose version they
believed.
‘‘[C]ourts have long admonished prosecutors to avoid
statements to the effect that if the defendant is innocent,
the jury must conclude that witnesses have lied. . . .
The reason for this restriction is that [t]his form of
argument . . . involves a distortion of the govern-
ment’s burden of proof. . . . Statements of this type
create the risk that the jury may conclude that, in order
to acquit the defendant, it must find that the witness
has lied.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) State v. Ciullo, 314 Conn.
28, 50, 100 A.3d 779 (2014). ‘‘[C]losing arguments provid-
ing, in essence, that in order to find the defendant not
guilty, the jury must find that witnesses had lied, are
. . . improper.’’ State v. Singh, supra, 259 Conn. 712.
‘‘[W]hen [however] the prosecutor argues that the jury
must conclude that one of two versions of directly con-
flicting testimony must be wrong, the state is leaving
it to the jury to make that assessment. Moreover, by
framing the argument in such a manner, the jury is
free to conclude that the conflict exists due to mistake
(misperception or misrecollection) or deliberate fabri-
cation.’’ State v. Albano, 312 Conn. 763, 787, 97 A.3d
478 (2014).
Here, the prosecutor’s comments that the defendant
challenges on appeal did not implicate a core justifica-
tion for the Singh rule because they did not force the
jury to find the defendant not guilty only if it first con-
cluded that the other witnesses had lied. The defendant
expressly stated during cross-examination that he
punched the victim in the head. The jury was thus not
required to find that Rogers and Dalessandro were lying
about the location of the punch to find the defendant not
guilty because, even if they were lying, the defendant
himself admitted to punching the victim in the head.
The jury thus could have found the defendant guilty on
the basis of his testimony alone. Moreover, the prosecu-
tor did not frame his statements in a manner that sug-
gested to the jury that it would need to find that the
state’s witnesses had lied in order to find the defendant
not guilty. The prosecutor instead framed his arguments
by asking the jury to weigh the credibility of each wit-
ness. Such arguments concerning witness credibility
are entirely permissible. See State v. Dawes, 122 Conn.
App. 303, 312, 999 A.2d 794 (prosecutor’s comments
were proper when based on evidence adduced at trial
and reflect prosecutor’s effort to invite jury to draw
reasonable credibility inferences), cert. denied, 298
Conn. 912, 4 A.3d 834 (2010). Defense counsel also
failed to object to any of these statements challenged
on appeal. Such a failure indicates that she did not
believe these comments to be improper in light of the
record at that time. State v. Marrero, supra, 198 Conn.
App. 122. In light of these considerations, we conclude
that the prosecutor did not violate Singh.
The judgment is affirmed.
In this opinion ELGO, J., concurred.
1
As a preliminary matter, we note that the defendant did not preserve
some of his claims of prosecutorial impropriety by objecting to the alleged
improprieties at trial. Specifically, the defendant failed to object to the
alleged improprieties that the prosecutor made during his closing argument
by arguing facts not in evidence and by arguing to the jury that in order to
find the defendant not guilty, it would have to find that two eyewitnesses
and the victim were lying, in violation of State v. Singh, 259 Conn. 693, 793
A.2d 226 (2002). Although the defendant did not preserve these claims,
‘‘[o]nce prosecutorial impropriety has been alleged . . . it is unnecessary
for a defendant to seek to prevail under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989) [as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015)], and it is unnecessary for an appellate court to
review the defendant’s claim under Golding.’’ (Internal quotation marks
omitted.) State v. Fasanelli, 163 Conn. App. 170, 174, 133 A.3d 921 (2016).
‘‘The reason for this is that . . . appellate review of claims of prosecutorial
[impropriety involves] a determination of whether the defendant was
deprived of his right to a fair trial, and this determination must involve the
application of the factors set out by [our Supreme Court] in State v. Williams,
204 Conn. 523, 540, 529 A.2d 653 (1987). . . . The consideration of the
fairness of the entire trial through the Williams factors duplicates, and,
thus makes superfluous, a separate application of the Golding test.’’ (Citation
omitted; internal quotation marks omitted.) State v. Daniel W., 180 Conn.
App. 76, 110, 182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d 638 (2018).
2
It is unclear from the record why the court sustained the objections to the
prosecutor’s additional questions about the defendant’s remorse. Defense
counsel did not state a reason for the objection, and the court did not
explain why it sustained the objections, after having previously allowed the
state to pursue this line of inquiry.
3
Indeed, the defendant has not raised any claim on appeal that a Doyle
violation actually occurred.
4
It is clear that such evidence would have been permissible. Both the
court and defense counsel stated that they did not believe such evidence
would violate Doyle and was thus permissible.
5
Even if we were to assume that the prosecutor’s question constituted
impropriety, we are not persuaded that the defendant was deprived of his
due process right to a fair trial. Under our review of the Williams factors,
we first note that the prosecutor’s question was not invited by the defense.
The first factor thus favors the defense.
We conclude, however, that the remaining factors favor the state. In regard
to the severity and frequency factors, ‘‘the severity of the impropriety is
often counterbalanced in part by the third Williams factor, namely, the
frequency of the [impropriety] . . . .’’ (Internal quotation marks omitted.)
State v. Daniel W., supra, 180 Conn. App. 113. ‘‘Improper statements that
are minor and isolated will generally not taint the overall fairness of an entire
trial.’’ (Internal quotation marks omitted.) Id. Here, the alleged impropriety
concerning the defendant’s postarrest silence was not pervasive throughout
the trial but was confined to a single question during the course of twenty-
one transcribed pages of direct examination of Detective Crean. Thus, the
potential impropriety, a single question to which the court appears to have
sustained an objection, cannot be classified as ‘‘frequent’’ or ‘‘severe’’ given
the lengthy direct examination and the absence of any evidence elicited.
Moreover, the question was not central to the critical issue of whether the
defendant intended to cause serious physical injury to the victim. The cura-
tive measures that the court took were also strong. Defense counsel immedi-
ately objected to the question, and no evidence was elicited. Although the
court did not issue a specific curative instruction to the jury concerning
this question, we conclude that any potential improper effect was diminished
by the court’s general instructions to the jury at the start of trial and before
closing argument. In those instructions, the court emphasized that questions,
objections, arguments, and statements made by the attorneys were not
evidence. The strength of the curative measures factor thus weighs in favor
of the state. See State v. Ross, 151 Conn. App. 687, 702–703, 95 A.3d 1208
(court’s general instructions to jury that arguments made by counsel were
not evidence diminished any improper effect of instances of claimed impro-
priety), cert. denied, 314 Conn. 926, 101 A.3d 271 (2014).
Finally, the last Williams factor, which assesses the overall strength of
the state’s case, also weighs in favor of the state. As previously observed,
there was sufficient evidence from which the jury could have reasonably
found that the defendant intended to cause serious physical injury to the
victim. Specifically, the defendant acknowledged his belief that the victim
would continue to follow him if he tried to continue walking. He then
admitted to punching the victim with a closed fist using his dominant right
hand and fleeing the scene. The force of his punch immediately knocked
the victim unconscious and fractured his skull in multiple places. The state’s
case was thus strong. We therefore conclude that the prosecutor’s question
concerning Detective Crean’s attempt to interview the defendant, even if
improper, did not deprive the defendant of his due process right to a fair trial.