State v. Chasse

• Decision Date: 22 December 1998
• Docket Number: (AC 17031)
• Citation: 721 A.2d 1212,51 Conn. App. 345
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. PATRICK CHASSE

51 Conn. App. 345

721 A.2d 1212

STATE OF CONNECTICUT v. PATRICK CHASSE

(AC 17031)

Appellate Court of Connecticut.

Argued September 15, 1998.

Officially released December 22, 1998.

Landau, Schaller and Healey, JS. Susan M. Hankins, assistant public defender, with whom were Paulette Annon, certified legal intern, and, on the brief, Stacey McGrath, certified legal intern, for the appellant (defendant).

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

Opinion

SCHALLER, J.

The defendant, Patrick Chasse, appeals from the judgment of conviction, rendered after a jury trial, of arson in the first degree in violation of General Statutes § 53a-111 (a) (1), arson in the second degree in violation of General Statutes § 53a-112 (a) (1) and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1). On appeal, the defendant claims that the trial court improperly (1) permitted the prosecutor to engage in misconduct, (2) instructed the jury concerning the element of intent and (3) instructed the jury on the effect of his intoxication evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In May, 1994, Eric Freeman was working as an attendant at a gas station in Guilford. While on duty at the gas station, Freeman was threatened in a telephone call from the defendant who claimed that he had been told by a mutual friend, Matt Broder, that Freeman intended to damage Broder's car. Later the same day, the defendant came to the gas station and threatened Freeman with physical harm. Freeman then called the police. As a result of the incident, Freeman was fired by the station owner. Approximately one and one-half months after the incident, Freeman resumed work at the gas station when ownership changed hands. On September 5, 1994, at approximately 10 p.m., Freeman was preparing to close the gas station for the night. As Freeman was doing paperwork in the office, he noticed the defendant walk up to the front window, pause and then walk off to the side of the building. A minute later, Freeman observed the defendant run up to the office door with something burning in his hand. The defendant then knelt down, opened the door and threw a burning bottle into the office. The burning bottle struck a soda machine and hit the floor without breaking. The contents of the bottle, however, began to leak out onto the office carpet. After several attempts, Freeman kicked the burning bottle outside. With the office carpet ablaze, Freeman attempted to put out the fire with the station's fire extinguisher, but the extinguisher did not work. An unidentified passerby then drove into the station and put out the fires, both inside and outside of the office, with his own fire extinguisher.

Shortly after the unidentified passerby departed, two of Freeman's friends arrived at the station when they drove by and observed smoke coming from the service area. Freeman told his two friends of the events that had recently transpired. The two friends assisted Freeman in ventilating the service station and then they called the police.

Upon arrival at the scene, the police observed burn marks on the office carpet and discharge from a fire extinguisher both inside and outside of the station. The police seized the bottle containing a liquid and a paper wick. Subsequent tests by the state police forensic laboratory found the liquid in the bottle to be consistent with gasoline.

The state charged the defendant with arson in the first degree in violation of General Statutes § 53a-111 (a) (1),¹ arson in the second degree in violation of General Statutes § 53a-112 (a) (1),² arson in the third degree in violation of General Statutes § 53a-113 (a),³attempt to commit first degree assault in violation of General Statutes §§ 53a-49 (a) (2)⁴ and 53a-59 (a) (1)⁵ and fabricating an explosive device in violation of General Statutes § 53-80a.⁶ At trial, the defendant alleged that he had been at home passed out on his couch when the firebombing occurred. To support his alibi, the defendant presented testimony from several witnesses who were either related to him or friends of his. In essence, the witnesses testified that on September 5, 1994, they attended a Labor Day party at the defendant's home. The party started outdoors at 3 p.m. and moved indoors at approximately 9 p.m. The witnesses testified that the defendant, who had been drinking heavily, subsequently passed out on the couch and was observed there at about 10 p.m. The defendant's wife recalled that the defendant was asleep at 10 p.m. because she had just finished putting their children to bed, which she always began at 9 p.m. None of the witnesses, however, told these circumstances to police.

On September 20, 1996, a jury found the defendant guilty of the crimes of arson in the first degree, arson in the second degree and attempt to commit first degree assault. The jury also found the defendant not guilty of the crimes of arson in the third degree and fabricating an explosive device. Thereafter, the trial court denied the defendant's motion for a new trial. This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendant's specific claims.

I

The defendant first claims that the trial court improperly permitted the prosecutor to engage in misconduct during closing argument. Specifically, the defendant claims that the prosecutor, during rebuttal closing argument, violated his due process right to a fair trial by (1) making a misstatement known to be untrue concerning the extent of the defense's evidence impeaching Freeman's credibility, (2) disparaging the evidence of the defense and impugning the institutional role of the defense counsel and his investigator, (3) testifying as an unsworn witness to facts not in evidence and (4) seeking the jurors' personal identification with Freeman, vouching for the credibility of witnesses and stating his personal opinions and beliefs. We are not persuaded. In his closing argument, the prosecutor correctly indicated to the jury that the state's case rested on the testimony of Freeman, the only eyewitness to the incident, and that "if you don't believe Eric Freeman's testimony that the defendant was the person who threw the firebomb, then the defendant's not guilty. Clear and simple." Defense counsel, also cognizant of the importance of Freeman's testimony, properly devoted most of her closing argument to Freeman and his testimony. Specifically, defense counsel questioned the credibility of Freeman's account of the incident. The jury was urged by defense counsel to question Freeman's recollection of the events because of inconsistent statements he gave to police. Defense counsel questioned the credibility of Freeman's further testimony concerning the unidentified passerby's coming to his aid, stating that if Freeman was lying about the unidentified passerby, then "[Freeman is] lying to you about a lot of things." Defense counsel also focused on the impeachment evidence⁷ she had elicited from Freeman⁸ and stated that Freeman's demeanor on the witness stand did not strike her as being as credible as that of the defense witnesses.

In his rebuttal argument, the prosecutor attempted to respond to defense counsel's foray on Freeman and his testimony. In so doing, the prosecutor made a number of remarks that the defendant claims were improper. We will address each of the claimed instances of misconduct in turn.

A

The defendant first argues that the prosecutor made a misstatement known to be untrue concerning the extent of the defense's evidence impeaching Freeman's credibility. During his rebuttal argument, the prosecutor, knowing that the defendant had other evidence of misconduct that defense counsel did not offer because she believed there was no legal basis on which to offer such evidence, argued to the jury that the admitted misconduct; see footnote 7; was the only "dirt" the defendant could "come up with." At the close of the prosecutor's rebuttal, the defendant moved the trial court to give the jury a cautionary instruction, which the trial court denied. The defendant subsequently renewed his objection in a motion for a new trial, which the trial court also denied. The defendant claims that these remarks misled the jury and bolstered Freeman's testimony by implying that defense counsel had no other evidence of misconduct that she could use to impeach Freeman.

We will review this claim because it was raised at trial and adequately preserved for review. Prosecutorial misconduct may occur during closing argument. See State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996); State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). "The focus of our review is on the prosecutor's comments viewed in the context of the entire trial, not on the culpability of the prosecutor.... Moreover, we will not disturb the trial court's ... ruling unless the challenged remarks have so infected the trial with unfairness as to make the resulting conviction a denial of due process." (Citation omitted; internal quotation marks omitted.) State v. Castonguay, 218 Conn. 486, 508, 590 A.2d 901 (1991).

At the outset, we note that the trial court did not interpret the prosecutor's remarks in the same manner as did the defendant.⁹ The trial court not only found that the prosecutor's comments were not sufficiently misleading to warrant a new trial, but also concluded that they were insufficiently misleading to require a curative instruction.

"When a verdict is challenged on the basis of the prosecutor's allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.... The trial court's ruling is entitled to weight because of the...