State v. Felix, 29517.

• Court: Appellate Court of Connecticut
• Citation: 961 A.2d 458,111 Conn.App. 801
• Decision Date: 30 December 2008
• Docket Number: No. 29517.,29517.
• Parties: STATE of Connecticut v. Rick FELIX.

961 A.2d 458 111 Conn.App. 801 STATE of Connecticut
v.
Rick FELIX. No. 29517. Appellate Court of Connecticut. Argued September 25, 2008. Decided December 30, 2008.

[961 A.2d 461]

H. Jeffrey Beck, Bridgeport, for the appellant (defendant).

Rocco A. Chiarenza, special deputy assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and James M. Bernardi, supervisory assistant state's attorney, for the appellee (state).

[961 A.2d 462]

DiPENTIMA, HARPER and BERDON, Js.

BERDON, J.

111 Conn.App. 802

The defendant, Rick Felix, appeals from the judgment of conviction, rendered following a jury trial, of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134(a)(4), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(4). The defendant was sentenced to a total effective term of forty years imprisonment. On appeal, the defendant claims that his right to a fair trial was violated due to prosecutorial improprieties¹ occurring

111 Conn.App. 803

in rebuttal to his closing argument.² We hold that the defendant's right to a fair trial was not violated. We accordingly affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 13, 2004, the defendant, accompanied by Renel Romias and Marvin Nowell, went to the home of Randy Johnson and his parents located at 261 Ely Avenue, Norwalk. Johnson and Darrel McFadden were at the Johnson home. The five men spoke in the hallway of the Johnson home where the defendant suggested that they rob a taxicab. The defendant stated that he had done it before and that it was easy. The individuals agreed on a plan in which Johnson would call a taxicab, and, when it arrived, they would threaten the driver with firearms. Johnson called the taxicab company and requested a pickup at 249 Ely Avenue. The five men walked to 249 Ely Avenue to wait for the taxicab. Romias was armed with a shotgun, and the defendant carried a Derringer handgun.

Ralph Moreau drove the taxicab that responded to the call. When Moreau arrived at 249 Ely Avenue, Romias opened the driver's side door and held a shotgun to Moreau's face. The defendant went to the passenger side door and pointed a handgun at Moreau's face. Romias and the defendant ordered Moreau out of the car. Moreau attempted to drive off, but the defendant shot him twice. The defendant and the other men then ran from the area.

111 Conn.App. 804

At approximately 4:15 a.m., the Norwalk police department received a report of a possible motor vehicle accident at 309 Ely Avenue. Officer John James Haggerty and Officer Anthony DePanfilis arrived to find Moreau's taxicab wedged in between two trees so that they could not open its doors. The taxicab's engine was still running. Moreau appeared to be gasping for air so the officers broke the window of the taxicab so they could get inside. Paramedics took over soon after the officers had broken the window, and they removed Moreau from the taxicab. At that time, the police investigated the scene as a motor vehicle accident. It was not until Moreau arrived at a hospital that

961 A.2d 463

medical staff discovered his gunshot wounds. Moreau subsequently succumbed to his injuries. The medical examiner determined that Moreau died from two gunshot wounds and classified his death as a homicide. The police recovered the two bullets and determined they were .22 caliber bullets. A Derringer handgun is capable of firing a .22 caliber bullet, but a shotgun is not.

A few days later, the defendant visited the Johnson home and stated to Randy Johnson in the presence of McFadden and Syreeta Johnson, Randy Johnson's sister, that he did not mean to shoot the victim, did not want to go to jail, and planned to blame the murder on Romias and to flee to Florida. Detective Ben Trabka of the Shelton police department, the husband of Tracey Trabka, the defendant's former schoolteacher with whom the defendant continued to maintain a relationship, testified that the defendant left a message on his wife's voice mail, in which the defendant identified himself. Detective Trabka testified that the defendant stated in that message that "when he went to Norwalk, everyone said he was going to fuck up, and that's exactly what he did; he went to Norwalk and fucked up. He was looking at a lot of years of jail. His aunt had hired him a lawyer, and it was about the cab shit. It was a

111 Conn.App. 805

taxi murder. It was in South Norwalk in Roodner Court where he lives. He was looking at charges. He was looking at conspiracy, conspiracy robbery, conspiracy murder. It didn't look good. And he continued to say that all of his boys were locked up, and he was the last one out." The state also admitted into evidence a recording of that voice mail.

At some point, the defendant went to Florida. The Norwalk police obtained an arrest warrant for the defendant, and he was arrested in Florida on December 16, 2004. After the defendant waived extradition, the Norwalk police department transported him back to Connecticut. A jury subsequently found the defendant guilty of felony murder, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree.

The defendant claims on appeal that eight statements made by the prosecutor during rebuttal in closing arguments to the jury were improper personal opinions and that four of the statements also referred to facts that were not in evidence. The defendant claims that these statements deprived him of his right to a fair trial under the due process clause of the fourteenth amendment to the United States constitution. We disagree.

At the outset, we first note that the defendant failed to object or otherwise to preserve the claim of prosecutorial impropriety by way of objections or motions for a mistrial. Nonetheless, "a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-prong Golding 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

111 Conn.App. 806

of due process.... In evaluating whether the [impropriety] rose to this level, we consider the factors enumerated by th[e] court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).... These factors include the extent to which the [impropriety] was invited by defense conduct or argument, the severity of the [impropriety], the frequency of the [impropriety], the centrality of the [impropriety] to the critical issues in the case, the strength of the curative measures adopted, and the strength of the state's case.... The consideration of the

961 A.2d 464

fairness of the entire trial through the Williams factors duplicates, and, thus makes superfluous, a separate application of the Golding test....

"This does not mean, however, that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor's improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant's right to a fair trial.... [Thus], the fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted. ...

"[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [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, [impropriety] is [impropriety], regardless of its ultimate effect on the

111 Conn.App. 807

fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question.... As we have indicated, our determination of whether any improper conduct by the state's attorney violated the defendant's fair trial rights is predicated on the factors set forth in State v. Williams, 204 Conn. at 540, 529 A.2d 653 with due consideration of whether that [impropriety] was objected to at trial." (Citations omitted; internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 360-62, 897 A.2d 569 (2006).

In determining whether an impropriety has occurred in closing arguments, "the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.... Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Moreover, [i]t does not follow ... that every use of rhetorical language or device [by the prosecutor] is improper.... The occasional use of rhetorical devices is simply fair argument. ... Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case.... This...