Posts tagged with "prosecutorial impropriety"

Inflammatory Comments by Prosecutor Found Not Sufficiently Prejudicial to Warrant Reversal

In a recent criminal law matter, the Supreme Court of Connecticut ruled that a prosecutor’s statements during closing arguments were improper because they appealed to the emotions, passions, and prejudices of the jurors. However, they did not deprive the defendant of a fair trial; thus, his due process claim was unpersuasive.

This case arose from a quadruple homicide that occurred on September 25, 1996. The defendant and a coconspirator planned on robbing a man following a dispute about crack cocaine sales, but instead murdered him in his home. There were three other people at the house, including the man’s teenage daughter, and each was fatally shot to prevent witness identification. Nonetheless, the defendant was linked to the crime and subsequently faced a host of charges, including four counts each of murder and felony murder.

During closing arguments, the prosecutor talked of grieving relatives “clutching” to past memories of their lost loved ones and the victim’s silent voices crying out for justice. The trial started one day after the September 11th attacks, and the prosecutor equated the jury’s civic duty to that of American troops “defending American values abroad.” He played a 911 recording in which the daughter can be heard “gasping for breath, unable to talk” and made explicit references to the biblical story of Cain and Abel. Defense counsel vehemently objected and moved for a mistrial, but the trial court denied the motion, instead electing to issue curative jury instructions. The defendant was convicted and given a total effective sentence of two hundred sixty (260) years of incarceration. On appeal, he argued in part that these statements improperly played on the emotions, passions, and prejudices of the jury. Therefore, the trial court erred in denying his motion for a mistrial.

In deciding a claim of prosecutorial impropriety, a reviewing court must first determine whether an impropriety even occurred, and if so, whether it deprived a criminal defendant of his or her right to a fair trial. What is crucial is whether the improprieties, as a whole, caused the trial itself to be fundamentally unfair, thus depriving a defendant of the Sixth Amendment right to a fair trial.

In this case, the Supreme Court determined that the use of the 911 recording was not improper. It was admitted as a full exhibit into evidence, as the defendant did not seek a limiting instruction on its use. “An exhibit offered and received as a full exhibit is in the case for all purposes.” Thus, because the prosecutor used the tape for a proper purpose, even though it “undoubtedly… had a great dramatic effect,” he was within his discretion to do so.

The Court, however, agreed with the defendant that the other comments overstepped the bounds of impropriety. These statements had “nothing to do with the evidence in the case or the defendant’s guilt or innocence.” Rather, they allowed the jury to decide the case “not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” It is notable that courts traditionally disapprove the use of religious imagery and references during criminal trials.

Even though the first prong of this analysis was answered in the affirmative, the Supreme Court determined that due process was not violated. It considered the following six factors, finding that only the first weighed in favor of the defendant:

[T]he extent to which the impropriety was invited by the defendant’s 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.

The defendant did nothing to provoke the comments. However, the statements were infrequent in light of the entire closing argument and not “grossly egregious.” The trial court took issue with the fact that the comments had nothing to do with the evidence. Finally, the prosecution’s case was strong, and the instructions telling the jury they had to decide the case on the evidence, not the statements, sympathy, or prejudice. Therefore, the Supreme Court, after addressing additional matters on appeal, affirmed the judgment.

When faced with a charge of a homicide crime, assault, or robbery, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Appellate Court Finds Sufficient Evidence to Convict, Declines Review of Other Claims Due to Inadequate Briefing

In a recent criminal law matter, the Appellate Court of Connecticut was not persuaded by a defendant’s claims of insufficient evidence to establish DUI and would not review his claim of prosecutorial impropriety because his appellate brief was inadequate.

This case arose from an incident that occurred at 7pm in Wilton on December 19, 2007. A citizen saw the defendant driving very slowly, hitting the right curb repeatedly, and nearly colliding with three cars in the opposite lane. This citizen and others boxed in the defendant after he came to a stop in the wrong lane. Police soon arrived and observed the smell of alcohol, the defendant’s slurred speech, and what appeared to be a red wine stain on his shirt. They administered the standard field sobriety tests, but the defendant failed one and then refused to perform the other two. He was arrested and brought to police headquarters, where he refused to submit to a breath test. The defendant admitted to consuming multiple drinks in his vehicle starting one hour before he was stopped.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of Connecticut General Statutes (CGS) § 14-227a(a)(1). During closing arguments, the prosecutor stated, “What bigger piece of circumstantial evidence would there be if the defendant was under the influence other than his refusal to take the test?” The defendant was subsequently convicted, though he appealed on multiple grounds. He argued that the evidence was insufficient to prove OMVUI. He further claimed that prosecutorial impropriety deprived him of a fair trial, because the prosecutor’s statement constituted compulsory self-incrimination.

To convict a defendant of OMVUI, the State must prove, beyond a reasonable doubt, that he operated a motor vehicle on a public highway while under the influence of alcohol or drugs. When a reviewing court adjudicates a sufficiency of the evidence claim, it construes the evidence so as to favor sustaining the verdict. It then determines whether, based on the facts and attendant inferences, a reasonable jury would have found that “the cumulative effect of the evidence established guilt beyond a reasonable doubt.” A jury may consider, pursuant to CGS § 14-227a(e), any inference regarding a defendant’s refusal to submit to a chemical alcohol test. In this case, the Appellate Court found ample evidence that the defendant committed OMVUI, based on his appearance and behavior, the field sobriety tests, and his refusal to submit to a breath test. Therefore, the Court rejected this claim.

Courts are under no duty to review claims that are inadequately briefed. As the Appellate Court discussed in a previous case, “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” In this case, the Appellate Court declined to review the defendant’s claim of prosecutorial impropriety because his brief was not adequate. He did not provide “any analysis, or cite any legal authority, to explain how his fifth amendment privilege against compulsory self-incrimination is implicated by the prosecutor’s statement in the present case.” After reviewing one additional claim on review, the Appellate Court affirmed the judgment.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Despite Prosecutorial Impropriety, Closing Argument Comment Did Not Deprive Defendant of a Fair Trial

In the previous article entitled “Court’s Limiting Instruction Minimized Prejudicial Impact of Contested Evidence,” I discussed how the Appellate Court of Connecticut rejected a defendant’s claim that the trial court improperly admitted allegedly prejudicial evidence. This article focuses on the defendant’s second claim on review: prosecutorial impropriety.

As previously noted, the defendant was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol and operating a motor vehicle with a suspended license. At trial, the State admitted into evidence an A-44 form, which is used by police when they report an arrest related to OMVUI. This form indicated that the defendant “refused to perform” two field sobriety tests, but on direct examination, the officer who filled out this form stated that no field sobriety tests were performed because the defendant appeared too intoxicated to safely perform them. On cross-examination, defense counsel questioned the disparity, and during closing arguments repeatedly highlighted the discrepancy to call into question the witness’s credibility. In its rebuttal argument, the prosecutor stated that the A-44 form was a standardized form voted on by the Connecticut legislature. However, this cited evidence that was never entered into the record, though defense counsel did not object when the statement was made.

When the defendant appealed his conviction, his second ground for appeal was that the prosecutor’s statement during closing arguments constituted an impropriety that deprived him of a fair trial. He argued that “the state impermissibly bolstered [the officer’s] testimony by improperly referring to evidence that was not in the record during closing argument.”

A reviewing court applies a two-step process when assessing a claim of prosecutorial impropriety. First, the court must determine whether an impropriety even occurred. Although counsel are generally allowed “generous latitude” with respect to their arguments, a prosecutor may forcefully argue his case so long as it is done so fairly based on facts within the evidence and attendant inferences. In this case, the Appellate Court concluded that the prosecutor’s statement amounted to an impropriety. He made reference to evidence that was not admitted, and because “the comment amounts to unsworn testimony… [it was] not proper in closing argument.”

However, the inquiry does not stop at a mere finding of impropriety. In the second step, the court must consider “whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” The court will consider the following six factors in the context of the entire trial:

[T]he extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case.

State v. Jordan, 117 Conn. App. 160, 164 (2009). In this case, the Appellate Court only found the first factor in the defendant’s favor. It noted that the comment was not sufficiently egregious and only occurred once. In addition, attribution to the legislature is not a central issue in an OMVUI case, and the court instructed the jury that counsel’s arguments were not evidence and thus could not be considered. The defendant provided no evidence that the jury disregarded this instruction. Finally, the State’s OMVUI case was sufficiently strong with ample supporting evidence. Therefore, the Appellate Court found that despite the impropriety, the comment did not deprive the defendant of a fair trial.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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