State v. Dillard

• Decision Date: 16 October 2001
• Docket Number: (AC 20384)
• Citation: 784 A.2d 387,66 Conn. App. 238
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JAMES DILLARD

66 Conn. App. 238

784 A.2d 387

STATE OF CONNECTICUT v. JAMES DILLARD

(AC 20384)

Appellate Court of Connecticut.

Argued March 27, 2001.

Officially released October 16, 2001.

Lavery, C. J., and Landau and Flynn, Js.

Felix Esposito, for the appellant (defendant).

Michael E. O'Hare, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, James Dillard, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree,¹ conspiracy to commit burglary in the first degree,² robbery in the first degree,³ conspiracy to commit robbery in the first degree⁴ and assault in the first degree⁵ in connection with a robbery that occurred on May 20, 1998. On appeal, the defendant claims that he was denied a fair trial because of a pattern of prosecutorial misconduct. Although we agree with the defendant that some of the claimed conduct was improper, we conclude that such misconduct did not clearly deprive the defendant of a fair trial. We therefore affirm the judgment of the trial court.

The defendant did not object at trial to any of the alleged prosecutorial misconduct on which his claims are based and therefore requests review of his claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁶ We review the defendant's claims because the record is adequate for our review and because a claim that the defendant's rights to due process and to a fair trial were denied is of constitutional dimension. State v. Radzvilowicz, 47 Conn. App. 1, 44, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

The defendant identifies seven instances of alleged prosecutorial misconduct in support of his claim. Specifically, the defendant claims that the prosecutor improperly (1) introduced evidence of the codefendants' pleas of guilty during the state's case-in-chief, (2) suggested that the defendant threatened a witness, (3) engaged in a general character assassination of the defendant and the codefendants, (4) suggested that defense counsel acted improperly in representing the defendant, (5) appealed to the passions of the jurors, (6) asked argumentative questions, interjected his personal opinion, misstated evidence and became an unsworn witness for the state in relation to the testimony of a particular witness and (7) commented on the appropriateness of the codefendants' pleas of guilty during closing argument.

The defendant acknowledges that he cannot prevail on his claims where the challenged conduct was not blatantly egregious and merely consisted of isolated and brief episodes that do not reveal a pattern of conduct repeated throughout the trial. State v. Dumas, 54 Conn. App. 780, 788, 739 A.2d 1251, cert. denied, 252 Conn. 903, 743 A.2d 616 (1999). The defendant claims, however, that the prosecutor engaged in a pattern of egregious and repeated misconduct not only throughout his case-in-chief but also during closing argument.

In determining whether prosecutorial conduct amounts to a denial of due process, we consider whether the conduct was improper, and, if so, we next determine whether the conduct caused substantial prejudice to the defendant. State v. Cansler, 54 Conn. App. 819, 828-29 n.9, 738 A.2d 1095 (1999). "We do not focus alone, however, on the conduct of the prosecutor. 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." (Internal quotation marks omitted.) State v. Rivera, 61 Conn. App. 763, 769, 765 A.2d 1240, cert. denied, 256 Conn. 901, 772 A.2d 599 (2001). "To make this determination, we must focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state's case." (Internal quotation marks omitted.) Id., 770.

I

The defendant first argues that during the state's casein-chief, the prosecutor improperly introduced into evidence the codefendants' pleas of guilty. We disagree. At trial, the state called as witnesses Lonnie Cross, Harson Griffith and Demetrius White, who, along with the defendant, were charged in connection with the robbery of the victim, Julio Burgos. At the time of trial, each of those witnesses had pleaded guilty to the robbery of Burgos and was incarcerated. Cross, the first to take the witness stand, stated that he was serving a ten year sentence for several robberies, including the robbery of Burgos. Next, Griffith testified that he pleaded guilty to several robberies, including the robbery of Burgos, and that he was serving a ten and one-half year sentence. He denied, however, any knowledge of the robbery of Burgos. White testified last that he also was in jail after pleading guilty to the robbery charge.

"[G]uilty pleas and convictions may be introduced into evidence if the co-conspirator or co-defendant testifies at trial, so that the factfinder will have appropriate facts on hand to assess the witness's credibility.... Convictions and guilty pleas generally are not admissible for credibility purposes if the co-conspirator or codefendant does not testify, and convictions and guilty pleas of co-conspirators and co-defendants other than the witness are not admissible to attack or bolster the witness's credibility." (Citation omitted; internal quotation marks omitted.) State v. Butler, 55 Conn. App. 502, 511, 739 A.2d 732 (1999), aff'd, 255 Conn. 828, 769 A.2d 697 (2001); see also State v. Just, 185 Conn. 339, 347-48, 441 A.2d 98 (1981) (whether person jointly charged with crime pleaded guilty not admissible on trial of another person so charged to establish that crime was committed); State v. Pikul, 150 Conn. 195, 198, 187 A.2d 442 (1962) (same). Within these bounds, we recognized in State v. Cox, 7 Conn. App. 377, 388, 509 A.2d 36 (1986), that asking a witness on direct examination about his conviction is a permissible tactic to anticipate or soften impeachment evidence. See also State v. Mitchell, 8 Conn. App. 598, 604, 513 A.2d 1268, cert. denied, 201 Conn. 810, 516 A.2d 887 (1986).

In Just, our Supreme Court rejected a claim similar to the defendant's claim in the present case. In that case, the state called three of the defendant's accomplices who had participated in the crimes alleged, and each testified at length on direct and on cross-examination and implicated himself and the defendant. State v. Just, supra, 185 Conn. 343. Two of the witnesses testified, without objection by the defense, about their convictions of the crimes for which the defendant was on trial. Id., 343-44. The third witness also testified as to his convictions in federal and state court for the certain crimes connected with the incident, to which the defense raised a general objection. Id., 345-46.

The court rejected the defendant's claim that the trial court improperly allowed "the state to prove his guilt by proving the convictions of alleged co-conspirators." (Internal quotation marks omitted.) Id., 343. In doing so, the court reasoned that "[a]ny prejudice resulting from the testimony of the pleas was rendered harmless when the guilt of the accomplices was established by their own testimony which also implicated the defendant." Id., 349. The court further reasoned that "[t]he purpose of the witness' testimony was to give the facts and circumstances of the crime[s]. The testimony as to their pleas of guilty gave the circumstances under which they were testifying, and their status with regard to the charge, and went to their credibility as witnesses for the state." (Internal quotation marks omitted.) Id. The court also noted several other factors that mitigated against finding harm, among which was the absence of any evidence that the state emphasized the witness' guilty pleas during final argument. Id., 350. Additionally, the court noted that defense counsel neither objected to the challenged testimony nor requested a curative instruction, possibly as a matter of trial strategy. Id., 351. In the present case, evidence of the codefendants' pleas of guilty came from the witnesses' own testimony and was inextricably linked with their testimony and other evidence regarding the circumstances surrounding the robbery of Burgos. Cross testified that at approximately 1 a.m. on May 20, 1998, he, Griffith, White and the defendant went to Burgos' apartment so that Cross could buy drugs and rob Burgos. When the state inquired as to the location of the robbery, Cross replied that it occurred on East Clay Street in Waterbury. The state then called to Cross' attention a statement in evidence that he had given to the police after being arrested.⁷ Although Cross professed to having no recollection of providing much of the information in the statement, he did testify that the defendant was present at the scene and drove the vehicle.⁸

Griffith testified that he did not know why he was incarcerated but that he was serving a ten and one-half year sentence after pleading guilty under the Alford doctrine⁹ to several robberies that he did not commit, including the robbery of Burgos in the early morning hours of May 20, 1998. Griffith denied being with the defendant at any time during the day on which Burgos was robbed. Next, White testified that it was Cross' idea to rob Burgos and that he, Cross and the defendant went to Burgos' apartment for that purpose. According to White, the defendant knocked on Burgos' door and entered, with White and Cross following behind. White further testified that as Burgos attempted to escape through a window, the defendant dragged him from the window and that the...