State v. Fauci

• Citation: 917 A.2d 978,282 Conn. 23
• Decision Date: 10 April 2007
• Docket Number: No. 17402.,17402.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Michael FAUCI.

917 A.2d 978

282 Conn. 23

STATE of Connecticut v. Michael FAUCI.

No. 17402.

Supreme Court of Connecticut.

Argued September 21, 2006.

Decided April 10, 2007.

Robert S. Bello, with whom, on the brief, were Lawrence M. Lapine, Thomas M. Cassone and Patrick D. McCabe, Stamford, for the appellant-appellee (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Maureen Ornousky, senior assistant state's attorney, for the appellee-appellant (state).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The defendant, Michael Fauci, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the judgments of conviction of three counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), and three counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(4) and 53a-48. The defendant's convictions stemmed from allegations that he had robbed three fastfood restaurants in Orange and Norwalk. On appeal to this court, the defendant claims (1) that the Appellate Court improperly determined that he was not denied a fair trial as a result of four instances of prosecutorial impropriety, and (2) that the senior assistant state's attorney (state's attorney) engaged in two other instances of prosecutorial impropriety.¹ On cross appeal, the state claims that the Appellate Court improperly concluded that four statements made by the state's attorney at trial constituted prosecutorial impropriety.² We conclude that the state's attorney committed one instance of prosecutorial impropriety and that it did not deprive the defendant of a fair trial. Accordingly, we affirm the judgment of the Appellate Court.

The following facts and procedural history are set forth in the opinion of the Appellate Court. "On the evening of May 28, 2001, the defendant and his friend, Ricky Saymon, robbed a McDonald's restaurant in Orange. The defendant's former girlfriend, Laurie Lasko, drove the getaway car. Lasko parked her red Buick Skylark in an abandoned parking lot near the [restaurant], and she waited in the car while the defendant and Saymon, wearing black clothing, masks and gloves and carrying a duffle bag, went to rob the restaurant. The defendant carried a gun, and Saymon carried a hammer. At approximately 11:45 p.m., the defendant and Saymon gained access to the closed restaurant by throwing a rock through a glass door. The restaurant manager, Inez Padilla, and one employee, Marlene Flores, were inside the restaurant. The defendant pointed the gun at Padilla [as she prepared to make the nightly deposit] and ordered her to give him the money that she was holding in her hand. . . . The defendant took the money and then locked . . . Padilla and Flores in the stockroom. Soon, he demanded that Padilla give him all of her keys so that he could unlock the drop safe under the front counter. Padilla gave him the keys from underneath the stockroom door . . . but told him that she did not have the key to the drop safe. Padilla and Flores listened as they heard the defendant and Saymon ransack the restaurant for fifteen or twenty minutes. Once things quieted down, they pushed out [the] ceiling tiles in the stockroom, crawled through the opening and escaped. They found that the restaurant had been ransacked, the register drawers had been pried open and the drop safe had been stolen. They telephoned the police.

"On August 10, 2001, the defendant suggested to Samuel Parisi that they rob a Taco Bell restaurant in Norwalk to obtain money to post bail for Saymon.³ The defendant's younger brother, Adam Fauci, drove the getaway car and took the defendant and Parisi to the back of the [restaurant] parking lot. After dropping them off, Adam Fauci drove across the street to a gasoline station to wait. Both Parisi and the defendant, wearing black clothing, masks, gloves and hats and carrying firearms, waited near a dumpster for the customers to leave the [restaurant]. The defendant carried a loaded firearm, and Parisi carried two unloaded firearms. Parisi picked up a rock and, once the customers were gone, threw it through the glass door, and he and the defendant entered the [restaurant] with their weapons drawn. The defendant pointed his firearm at the manager, William Morales, while Parisi kept his weapons pointed at the four employees. The defendant asked Morales where the money was kept, and Morales said that it was in the office. The defendant then walked Morales to the office to get the deposit bag. The defendant next ordered Morales to open the safe at the front counter. Morales attempted to open the safe but explained that it was deadlocked and could not be opened until morning. The defendant did not accept this and ordered Morales to try again. When the defendant ordered Morales to try a third time, Morales explained that an alarm would sound and the police would come if he tried again. The defendant then ordered the cashier at the drive through window to give him the money from that cash register, which the cashier did, and the defendant and Parisi left. . . .

"On September 5, 2001, the defendant borrowed Lasko's car, and he, Parisi and Saymon, who was then out of jail, planned to rob a McDonald's restaurant in Norwalk. The men gathered their gloves, masks, hats and hooded sweatshirts for the robbery. They also took their firearms. Although they had planned to gain access to the [restaurant] by throwing a rock through a glass door, the door was unlocked, giving them easy access. Saymon grabbed the manager, Daisy Ashman, and ordered her to open the safe. The defendant stood over another employee, Blanca Vasquez, ensuring that she did not move. After Ashman opened the safe, Parisi emptied it. Saymon then asked Ashman where additional money was located, and Ashman stated that she did not know. The men then grabbed Vasquez' purse, which contained $500, and they ran out of the [restaurant].

"The defendant was charged with and convicted of three counts of robbery in the first degree and three counts of conspiracy to commit robbery in the first degree."⁴ State v. Fauci, 87 Conn.App. 150, 152-55, 865 A.2d 1191 (2005). The defendant appealed to the Appellate Court from the judgments of conviction, claiming, inter alia, that, because the state's attorney committed certain prosecutorial improprieties, he was denied a fair trial. The Appellate Court determined that there had been four instances of prosecutorial impropriety but affirmed the judgments of conviction after determining that he nevertheless received a fair trial. We granted the defendant's petition for certification to appeal and the state's petition for certification to cross appeal, limited to the following issues: "Did the Appellate Court properly conclude that: (1) the state engaged in prosecutorial [impropriety]; and (2) the defendant was not deprived of a fair trial as a result?" State v. Fauci, 273 Conn. 921, 922, 871 A.2d 1029 (2005).

I

We first address the defendant's claims. The defendant claims that the Appellate Court properly determined that the state's attorney had committed four instances of prosecutorial impropriety at trial but incorrectly concluded that two additional statements by the state's attorney were not improper. The defendant also claims that the Appellate Court incorrectly concluded that none of the instances of alleged prosecutorial impropriety deprived him of a fair trial. Specifically, the defendant claims that he was denied a fair trial because the state's attorney made statements that fall into three prohibited categories: (1) the expression of her personal opinion regarding the credibility of witnesses or the defendant's guilt; (2) the suggestion that, in order to find the defendant not guilty, the state's witnesses must be lying; and (3) the introduction of facts not in evidence and improper argument urging inferences based on those facts. We agree with the Appellate Court that the defendant was not deprived of a fair trial but conclude that only one instance of prosecutorial impropriety occurred.

We begin our analysis by setting forth the applicable law regarding claims of prosecutorial impropriety. In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. E.g., State v. Stevenson, 269 Conn. 563, 572, 849 A.2d 626 (2004). The two steps are separate and distinct. Id. We first examine whether prosecutorial impropriety occurred. Id. Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. Id. In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry. See id.

"[T]he touchstone of due process analysis in cases of alleged [harmful] prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor's [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process. . . . In determining whether the defendant was denied a fair trial . . . we must view the prosecutor's [actions] in the context of the entire trial. . . .

"[I]t 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. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. . . . By reason of his [or her] office, [the prosecutor] usually...