State v. Butler

• Decision Date: 08 June 1999
• Citation: 739 A.2d 732
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 1999) STATE OF CONNECTICUT v. HAROLD TRENT BUTLER AC 17753 Argued:

739 A.2d 732 (Conn.App. 1999)

STATE OF CONNECTICUT v. HAROLD TRENT BUTLER

AC 17753

APPELLATE COURT OF CONNECTICUT

Argued: June 8, 1999

November 2, 1999

Avery S. Chapman, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, assistant state's attorney, for the appellee (state).

Before: Foti, Lavery and Landau, JJ.

LAVERY, J.

The defendant, Harold Trent Butler, appeals from the judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes 53a-54a (a) and 53a-8 and conspiracy to commit murder in violation of General Statutes 53a-54a (a) and 53a-48 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motions for a mistrial that were based on the existence of egregious prosecutorial misconduct, (2) adopted a curative instruction that was insufficient to cure the prejudice caused by the misconduct, (3) denied his motion to set aside the verdict on the basis of juror misconduct and (4) admitted evidence of uncharged misconduct. We agree with the defendant and reverse the judgment of the trial court.¹

The record discloses the following information that is relevant to the resolution of this appeal. On March 21, 1994, Officer William Coppola of the New Haven police department was dispatched to 305 Exchange Street, where he discovered the body of the victim, Amenophis Morris. The victim had sustained fatal gunshot wounds. At the defendant's trial, Jeffrey Dolphin testified for the state concerning the circumstances surrounding the murder. Dolphin testified that on March 21, 1994, Terrance Stevenson forced him at gunpoint into a motor vehicle driven by James Baker. Jermaine Harris and the defendant were passengers in Baker's vehicle.

Dolphin testified that when Baker was driving on Exchange Street, one of the vehicle's occupants noticed the victim standing on the front porch of 305 Exchange Street. Baker then parked the vehicle farther down the block. Dolphin testified that Stevenson and Harris exited the vehicle and walked toward the victim. Baker and the defendant then exited the vehicle and waited near the front of the car. Dolphin testified that shortly after he heard six or seven gunshots, Harris, Baker, Stevenson and the defendant returned to the vehicle, and either Harris or Stevenson stated, "I got the mother . . . I got the asshole."

Dolphin did not immediately contact the police. On April 22, 1994, the police arrested Dolphin on unrelated narcotics charges, and he provided information about the murder. The police subsequently arrested Harris, Stevenson, Baker and the defendant, and charged them with murder as accessories and conspiracy to commit murder. Dolphin testified at the trials of Baker and Stevenson, which preceded the defendant's trial, and Baker and Stevenson were convicted on both charges. In the present case, the jury found the defendant guilty of murder as an accessory and conspiring to commit murder. He received a total effective sentence of forty-five years imprisonment. This appeal followed.

The defendant claims that the trial court improperly denied his motions for a mistrial, which he based on the existence of egregious prosecutorial misconduct that deprived him of his due process right to a fair trial in violation of the federal constitution. After careful examination of the specific circumstances in this case, we agree with the defendant.²

The following additional facts are relevant to a resolution of this issue. The defendant was charged with accessory to murder and conspiring to commit murder. At trial, the prosecutor claimed that the defendant aided and abetted Baker, Harris and Stevenson in murdering the victim, and conspired with them to commit the murder. In its appellate brief, the state concedes that the jury was informed that the trials of Baker and Stevenson had preceded the defendant's trial and that Dolphin had testified in those trials.

In closing argument to the jury, defense counsel stated: "One of the most difficult parts about [this case] has been tracking all of the inconsistencies of the state's witness, Mr. Dolphin. The witness for the state, Jeffrey Dolphin, has lied to you, ladies and gentleman. He has lied to the police, he has lied to other juries, he has lied to you as members of this jury. He has lied to an officer of the court, attorney [Leo] Ahern. But don't take my word for it, just look at his testimony . . . ." The prosecutor neither objected to this statement when it was made, nor did he object at the conclusion of defense counsel's closing argument, nor did he request a curative instruction or some other remedy.

Instead, in rebuttal, the prosecutor stated: "The other thing [defense counsel] said to you -- I do not want you to be left with the wrong impression -- he said that [Dolphin] has lied to other juries. Well, let me tell you, ladies and gentlemen, I wish I could tell you what other juries decided, but I am not allowed to." (Emphasis added.) At the conclusion of the prosecutor's rebuttal, after the court had excused the jury, defense counsel orally moved for a mistrial.³ The court stated: "That is absolutely some of the most impermissible argument I have heard. . . . I am so upset about this, and I am going to think about it during the lunch hour, but you might think about what I might send to the New York District Attorney."⁴ After the lunch recess, defense counsel filed a written motion for dismissal, mistrial, surrebuttal time or a corrective instruction. The prosecutor claimed that his statement was invited by defense counsel and that he was merely attempting to counteract defense counsel's assertion that Dolphin had lied to other juries. Defense counsel responded that his statement merely referred to the inconsistencies in Dolphin's testimony in this trial and the two previous trials. The court agreed with defense counsel. Despite stating that the prosecutor's comment was prejudicial, improper and unprofessional, the court denied the defendant's motions for dismissal and a mistrial, but granted the request for a curative instruction.

The following principles govern our review of the defendant's claim. It is well recognized that the state's attorney "is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused be guilty, he 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." State v. Ferrone, 96 Conn. 160, 168-69, 113 A. 452 (1921).

"The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980) . . . . When a mistrial is sought on the ground that a prosecutor's improper remarks violated the defendant's constitutional right to due process of law the same standard applies. See State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982); State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978). The burden on the defendant is to show that the prosecutor's remarks were prejudicial in light of the entire proceeding. See State v. Cosgrove, 186 Conn. at 488-89; State v. Hawthorne, 176 Conn. at 372; State v. Kinsey, 173 Conn. 344, 348-49, 377 A.2d 1095 (1977). The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Cosgrove, 186 Conn. at 488-89, citing Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982)." (Citation omitted.) State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).

"[A] state's attorney should scrupulously avoid questions of probable impropriety . . . ." (Internal quotation marks omitted.) State v. Piskorski, 177 Conn. 677, 719, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). "'A demonstrated deliberate effort by a prosecutor to influence the jury against the defendant through the attempted introduction of obviously inadmissible evidence may entitle the defendant to a new trial. United States v. Woods, 486 F.2d 172 (8th Cir. [1973]); State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 [1975].' State v. Baker, 182 Conn. 52, 58, 437 A.2d 843 (1980). While the absence of bad faith by a prosecutor is to be accorded considerable weight in a given case, that, however, is not to say that a showing of good faith by the prosecutor is 'determinative.' State v. Hafner, [supra, 249]. ...