State v. Abrahams

• Decision Date: 07 October 2003
• Docket Number: (AC 22671)
• Citation: 79 Conn. App. 767,831 A.2d 299
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. DAVID ABRAHAMS.

79 Conn. App. 767

831 A.2d 299

STATE OF CONNECTICUT v. DAVID ABRAHAMS.

(AC 22671)

Appellate Court of Connecticut.

Argued May 7, 2003.

Officially released October 7, 2003.

Flynn, Mihalakos and McDonald, Js. Lisa J. Steele, special public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and David R. Shannon, assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, J.

The defendant, David Abrahams, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217. The defendant was also charged with the commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. On appeal, the defendant claims that his constitutional rights to due process and to a fair trial were violated as a result of prosecutorial misconduct. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Jacqueline Peton, were involved in a sometimes volatile, live-in relationship from December, 1994, until August, 2000, during which time they had a child. Prior to the relationship ending, the victim called the Danbury police in August, 2000, claiming that the defendant had violated the restraining order that she had obtained against him living with her. At that time, to give the victim "a taste of her own medicine," the defendant called her employer and reported that she was stealing cleaning products at work and selling them.

On November 1, 2000, the defendant went to the victim's apartment to see his son. When the victim did not allow him into her apartment, the defendant threatened to kill her and stated that he was going to report her to the department of children and families for child abuse. During the early evening hours of November 3, 2000, the defendant and the victim had an argument during a telephone conversation. After the victim hung up, the defendant repeatedly called her telephone number. Despite the defendant's objections, she went out that night with Ricky Cordiero. At approximately 5 a.m. on November 4, 2000, the victim returned to her apartment complex and observed the defendant sitting in his vehicle, a black Chrysler sedan with custom wheel rims. As the victim walked toward her building, the defendant ran to her with a gun in his hand and grabbed her. When she escaped, the defendant circled her and fired a series of shots at her, wounding her in the leg, elbow and buttocks. After the defendant's gun jammed, as he left the scene, he told the victim, "I'm going to get you. I'm going to have somebody f*cking kill you."

The defendant was convicted after a jury trial. This appeal followed. On appeal, the defendant claims that the prosecutor engaged in misconduct by improperly referring to an absent witness, beyond the scope of the court's order as to what could be stated in closing argument to the jury about that witness, by making unnecessary reference to the defendant's postarrest incarceration, by giving unsworn testimony about matters not in the record and by asking the defendant to comment on the veracity of a witness.

The defendant failed to preserve his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),¹ or the plain error doctrine. See Practice Book § 60-5.² Because the record is adequate for review and a claim of prosecutorial misconduct affecting the fairness of the trial in violation of a fundamental right is of constitutional magnitude, we will review the defendant's claim under Golding. See State v. Santiago, 73 Conn. App. 205, 212, 807 A.2d 1048 (2002), cert. granted on other grounds, 262 Conn. 939, 815 A.2d 673 (2003). "To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice.... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . . Prosecutorial misconduct may occur in the course of cross-examination of witnesses . . . . Moreover, prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself. . . . In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument. . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted ... and the strength of the state's case. . . .

"As is evident upon review of these factors, it is not the prosecutor's conduct alone that guides our inquiry, but, rather, the fairness of the trial as a whole. . . . We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system.... If the accused be guilty, he [or she] should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider." (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 699-702, 793 A.2d 226 (2002).

"[W]hether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor's improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant's right to a fair trial.... [S]ee also State v. Andrews, 248 Conn. 1, [20], 726 A.2d 104 (1999) (failure of defense counsel to object to prosecutor's rebuttal argument suggested that `defense counsel did not believe that it was unfair in light of the record of the case at the time'); State v. Robinson, [227 Conn. 711, 746, 631 A.2d 288 (1993)] (failure to object to closing arguments indicated that defense counsel `did not regard . . . remarks as seriously prejudicial at the time they were made')." (Citation omitted.) State v. Reynolds, 264 Conn. 1, 165, 836 A.2d 224 (2003). With those principles in mind, we will first examine whether the prosecutor's actions were improper. If we find the conduct to be improper, we must then determine whether the impropriety deprived the defendant of a fair trial.

I

The defendant claims that the prosecutor improperly referred to an absent witness, beyond the scope of the court's order as to what the prosecutor could state to the jury in closing argument about that witness. The defendant claims that the prosecutor exceeded the court's order by commenting on the absence of Eddie Lynch during closing argument. We disagree.

The following facts and procedural history are relevant to our resolution of that issue. During the defendant's testimony, he denied having shot the victim and claimed that at the time of the shooting, he was with Lynch and Lynch's girlfriend, Olga Lopez. On cross-examination, the state asked the defendant why there was a call placed from the defendant's cellular phone to Lopez's house shortly after 5 a.m., when he had testified on direct examination that he was at Lopez's house at that time. The defendant responded that he had awoken to use the bathroom, and, while he was running to the bathroom, he tripped over Lopez's telephone cord. To be sure that he did not damage Lopez's telephone, the defendant testified, he used his cellular phone to call Lopez's number. Following his testimony, the defendant inquired of the court as to whether it would allow the state to comment to the jury on why Lynch and Lopez were not called to testify.

The court, after hearing from the state's investigator that he was able to locate and to speak to Lopez, stated: "I'm going to allow the state to make the appropriate comments as indicated in State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). The state can make an argument about the absence of Olga Lopez. And that the defendant didn't—hasn't asserted sufficient credible evidence to support his alibi, but the state is ordered not to directly exhort the jury to draw an adverse inference by virtue of that witness' absence."

During closing argument, the prosecutor stated: "[At] 5:10, 5:10 in the morning, right after the shooting, there's a call on the defendant's cell phone bill to Olga Lopez's house, the place he [is] supposed to be . . . according to his own testimony. [At] 5:34, look at the bill, there's another call to the same number, Olga Lopez's house. I'm arguing the reasonable inference is he's calling there, he's not there." The prosecutor at that time made no reference to the defendant's failure to call alibi witnesses. During the defendant's closing argument, his attorney stated: "The state, I know, will raise the issue of Olga Lopez. The state's going to indicate that [the defendant's] alibi is [himself], there's no other witnesses, we didn't call any other alibi...