State v. Ciullo

• Decision Date: 07 October 2014
• Docket Number: No. 19127.,19127.
• Citation: 314 Conn. 28,100 A.3d 779
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Pasquale E. CIULLO.

314 Conn. 28

100 A.3d 779

STATE of Connecticut

v.Pasquale E. CIULLO.

No. 19127.

Supreme Court of Connecticut.

Argued March 24, 2014.

Decided Oct. 7, 2014.

Herald Price Fahringer, pro hac vice, with whom, on the brief, were Erica T. Dubno, pro hac vice, and Edward J. Gavin, Bridgeport, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and James Bernardi, supervisory assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ROBINSON, Js.

Opinion

EVELEIGH, J.

The defendant, Pasquale E. Ciullo, appeals from the judgment of the Appellate Court affirming the trial court's judgment of conviction, rendered after a jury trial, of two counts of unlawful restraint in the first degree in violation of General Statutes § 53a–95.¹ State v. Ciullo, 140 Conn.App. 393, 395–96, 59 A.3d 293 (2013). In this certified appeal, the defendant claims that the prosecutor engaged in certain improprieties that deprived him of his due process right to a fair trial. Upon a consideration of the entire record, we conclude that the instances of alleged prosecutorial impropriety identified by the defendant did not affect the fairness of the trial or prejudice the defendant. Accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court appropriately sets forth the following facts that the jury reasonably could have found. “The defendant owned and rented out a house located at 172 Byram Shore Road in Greenwich. In May, 2007, the defendant and his neighbor, Rose Pinchuk, were involved in a dispute over a stone wall and pillars that border their two properties. This dispute resulted in the use of attorneys and a survey being conducted to determine the exact location of the defendant's property line.

“On July 4, 2007, Pinchuk drove to Port Chester, New York, and hired two day laborers, Victor Illescas and Job Diaz,² and drove them to her house. Pinchuk directed Diaz and Illescas to install a fence, which followed her home's property line and continued into the driveway of the defendant's house. Pinchuk supplied Illescas and Diaz with the materials and tools necessary for the fence extension, including a pickax, shovel, rake and iron bar. Pinchuk and the defendant's neighbor, Martin Hyman, observed the laborers digging holes in the driveway, and Hyman called the defendant's place of residence for the purpose of reporting these happenings. When the defendant's son, Angelo Ciullo, answered the telephone at the defendant's home, Hyman informed him of the fence construction, and urged [Angelo Ciullo] to call the police due to the property damage he believed was being caused by the work of Illescas and Diaz.

“After receiving this telephone call, the defendant and [Angelo Ciullo] drove a pickup truck to the defendant's house on Byram Shore Road and brought the truck to a sudden stop where Illescas and Diaz were working in close proximity to each other. The defendant and Angelo Ciullo left the truck, drew Walther PPK semiautomatic pistols from their holsters and began yelling at the laborers. During these initial moments of the confrontation, the defendant pulled back his pistol's slide ... and he and Angelo Ciullo pointed their pistols at Illescas. The defendant and [Angelo Ciullo] then approached Illescas, and the defendant grabbed Illescas by the neck, pointed his pistol at Illescas' [neck] and ordered him to sit down. While Diaz initially ran behind Pinchuk, who was standing twelve to thirteen feet away and was calling 911 on her cell phone, he soon halted and sat down after Angelo Ciullo pointed his pistol at him. When Pinchuk screamed and ran away, the defendant instructed Angelo Ciullo to hold Illescas and Diaz together as he picked up a shovel and chased after Pinchuk along Byram Shore Road to a stone patio around the back of a neighboring house where Pinchuk fell to the ground.

“When the police arrived at the scene, they encountered the defendant and Angelo Ciullo standing near Illescas and Diaz. The defendant told the police that he had instructed the laborers to stop working on his property, that he and Pinchuk had previously disagreed over the boundary separating their property and that Pinchuk had been present when they arrived at the scene but had run away. The police located Pinchuk lying on the steps of the backyard patio of the house where she had run while being pursued by the defendant. On examination, the police discovered that she had a lacerated left palm and bruising on her legs. A subsequent police search of the defendant's pickup truck revealed that a wooden billy club and baseball bats were stored in the cab of the truck. The police then arrested the defendant and Angelo Ciullo.”³ Id., at 396–98, 59 A.3d 293.

The record reveals the following additional facts. After the defendant and Angelo Ciullo exited the car, the defendant repeatedly yelled profanities at the laborers, turned off the safety mechanism on his gun, and displayed the gun to the laborers constantly, lifting the gun out of its holster enough to place his hand around the trigger guard.⁴ The defendant surrendered his gun to a responding police officer with the safety off, a hollow point bullet in the chamber, and a full magazine loaded into the gun.

The opinion of the Appellate Court appropriately sets forth the procedural history. “The state charged the defendant by way of an amended information with three counts of unlawful restraint in violation of § 53a–95, one count of assault in the first degree in violation of General Statutes § 53a–59 (a)(1) and one count of illegal possession of a weapon in a motor vehicle in violation of General Statutes [Rev. to 2007] § 29–38(a). The court instructed the jury on assault, unlawful restraint and the weapon charge. The court also instructed the jury, at the defendant's request, on the law regarding the defense of premises [civilian arrest] and self-defense. Following deliberations, the jury found the defendant guilty of three counts of unlawful restraint but not guilty of the assault charge and the weapon charge. The trial court, after accepting the jury's verdict, sentenced the defendant to concurrent terms of five years incarceration on the unlawful restraint charges for a total effective sentence of five years incarceration.” Id., at 398, 59 A.3d 293. The defendant appealed the judgment of conviction to the Appellate Court.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the prosecutor engaged in improprieties that deprived him of a fair trial.⁵ Id., at 395–96, 59 A.3d 293. The Appellate Court found that the prosecutor's statements were not improper and did not deprive the defendant of his right to a fair trial, though it did reverse the defendant's conviction for unlawful restraint of Pinchuk, citing to insufficient evidence to support the verdict. Id., at 405, 415, 59 A.3d 293. This appeal followed.⁶

On appeal to this court, the defendant claims that the prosecutor improperly: (1) shifted the burden of proof to the defense; (2) vouched for the credibility of the state's witnesses; (3) denigrated the defense and impugned the credibility of the defendant's testimony; and (4) appealed to the jurors' emotions. The defendant claims that the sum of the prosecutor's alleged improprieties deprived him of his due process right to a fair trial. The state claims that the prosecutor's statements were not improper and, even assuming they were, such improprieties did not violate the defendant's due process right to a fair trial. We agree with the state and affirm the judgment of the Appellate Court, albeit for different reasons.

Before we address the merits of the defendant's claims, we set forth the standard of review and the law governing claims of prosecutorial impropriety. “[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [an impropriety is an impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question that may only be resolved in the context of the entire trial....” (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 428, 902 A.2d 636 (2006).

“[I]t is unnecessary for a reviewing court to apply the four-prong Golding⁷ test.... The reason for this is that the defendant in a claim of prosecutorial [impropriety] must establish that the prosecutorial [impropriety] was so serious as to amount to a denial of due process.... In evaluating whether the [impropriety] rose to this level, we consider the factors enumerated by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).⁸ ... 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.” (Footnotes altered; internal quotation marks omitted.) State v. Luster, supra, 279 Conn. at 426–27, 902 A.2d 636.

The state asserts that the defendant raises previously unreviewed examples of prosecutorial improprieties for the first time on appeal to this court. Noting that the Appellate Court ruled on the defendant's claims of prosecutorial impropriety only with respect to vouching for the credibility of the state's witnesses, the state asserts that we should disregard those alleged improprieties that do not fall within the category of “vouching.” We disagree.

It is well settled that “a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of [Golding ] ....” (Internal quotation marks omitted.) State v....