State v. Floyd

• Decision Date: 05 May 1987
• Docket Number: No. 4115,4115
• Citation: 523 A.2d 1323,10 Conn.App. 361
• Parties: STATE of Connecticut v. Robert L. FLOYD.
• Court: Connecticut Court of Appeals

Page 1323

523 A.2d 1323

10 Conn.App. 361

STATE of Connecticut v. Robert L. FLOYD.

No. 4115.

Appellate Court of Connecticut.

Argued Dec. 10, 1986.

Decided April 7, 1987.

Certification Denied May 5, 1987.

Timothy H. Everett, Hartford, with whom, on the brief, were Cynthia J. Clancy and Stephen Knudsen, Legal Interns, for appellant (defendant).

Steven M. Sellers, Deputy Asst. State's Atty., with whom, on the brief, was Mary Galvin, Asst. State's Atty., for appellee (state).

Before HULL, DALY and BIELUCH, JJ.

DALY, Judge.

After a jury trial, the defendant was convicted of the crimes of arson in the third degree in violation of General Statutes § 53a-113(a) and of using a motor vehicle without the owner's permission in violation of General Statutes § 53a-119b(a)(1). On appeal, the defendant claims that the court erred in denying his motions for a mistrial due to (1) improper summation by the prosecutor, and (2) the trial court's expression of its personal feelings before the jury. He further claims that it was error to admit evidence concerning the complainant's state of mind.

The jury could reasonably have found the following facts. In the early morning of October 1, 1983, a fire was discovered in the back seat of a car parked in a lot on Mansfield Street, New Haven. The fire appeared to have been burning only a short time prior to its discovery. The car had no license plates, its left front tire was flat and there was fresh damage to the front bumper and hood. The automobile was registered in the name of Robert Gattison but was being used with his permission by his sister, Sherry Gattison, the live-in companion of the defendant. There were no signs of forced entry and it appeared that the car had been started with a key. The complainant, Sherry Gattison, had not given the defendant permission to drive the car. The defendant and the complainant were in the midst of breaking-up, and the defendant was planning to vacate the couple's shared residence.

The complainant had parked her brother's car in front of the couple's apartment at 6 p.m. the prior evening, entered the apartment, and taken a nap. The defendant came home some two hours later, soon departed and returned at approximately 1:30 a.m. on October 1. At that time, the defendant told the complainant that he had taken the car and driven it into a tree and then had set the car afire and contemplated committing suicide in the flaming car. At approximately 3 a.m., the complainant received a telephone call from her mother who stated that the police found the vehicle in a parking lot. The complainant then told the defendant she was going to telephone the police, but refrained from doing so because the defendant threatened her. The complainant did not, in fact, relay her knowledge of the original crime to the police until October 24, 1983. The defendant's car was similarly set on fire some twenty hours later. The defendant accused the complainant's brother of setting the fire.

The defendant presented an alibi defense and alibi witnesses. The defendant's alibi that he was with friends until returning to the apartment at 9:30 p.m. conflicted, however, with the alibi witnesses' testimony that he was with them until 11:30 p.m.

The state's chief witness was the complainant, Sherry Gattison. During the trial, she testified that she had not received any of the insurance proceeds from the car fire. The next day, the state's attorney informed the court that the complainant had, in fact, received $1400 in insurance proceeds but had been confused by defense counsel's questioning. The defense used this discrepancy to impeach the witness.

I

In his first claim of error the defendant asserts that his motion for a mistrial due to impermissible conduct by the prosecutor should have been granted. He claims that the prosecutor's closing argument was improper in three ways. First, that she injected her personal ethics into the summation; second, that her mention of the fifth amendment presumption of innocence and reasonable doubt was an improper reference to the defendant's failure to testify in his own behalf; and finally, that the prosecutor unfairly labeled him a "liar."

"Article first, § 8 of the Connecticut constitution provides that '[n]o person shall be ... deprived of ... liberty ... without due process of law....' It is the prosecutor's duty to ensure that a defendant's conviction comports with this provision.... 'By reason of [her] office, [the prosecutor] usually exercises great influence upon jurors. [Her] conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because [she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.' " State v. Couture, 194 Conn. 530, 564, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985).

The role of a prosecutor is different from that of an ordinary advocate for the prosecutor's duty is to see that justice is done. He or she must refrain from trying to arouse prejudice in the jury; State v. Falcone, 191 Conn. 12, 22, 463 A.2d 558 (1983); or from diverting their attention from their duty to base their conclusions on the evidence actually presented at trial. State v. Couture, supra, 194 Conn. at 562, 482 A.2d 300.

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 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." State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984).

The trial court is in a better position than we are to assess the arguments of counsel and is, therefore, granted wide discretion in determining their propriety. While the trial court's actions are subject to review, we will reverse a decision only if the court clearly exceeded or abused its discretion resulting in obvious prejudice and injury to some party. State v. Evans, 165 Conn. 61, 65, 327 A.2d 576 (1973).

Although a prosecutor may, indeed should, argue to the jury all reasonable inferences from the evidence presented, an expression of his or her personal opinion of the credibility of a witness is not evidence and as such should not be argued to the trier of fact. Rules of Professional Conduct, Rule 3.4(e) (formerly Code of Professional Responsibility, Canon 7, EC 7-24); accord 1 A.B.A. Standards for Criminal Justice (2d 1980) The Prosecution Function, § 3-5.8(b). In this case, the defendant claims the prosecutor improperly "vouched" for the credibility of Sherry Gattison, by stating during rebuttal: "If you believe I've intentionally put on any perjured testimony in this case, if you believe, ladies and gentlemen of the jury, that I've lied to you, that I have misrepresented facts, then even though I'm not here as Mary Galvin--I am here as the prosecutor for the people of the State of Connecticut--for my ethics, I have to say to you if you believe that, acquit this man."

While the prosecutor's references to her personal ethics in this case were improper, "[w]e also recognize that '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.' " State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985). Defense counsel launched an ad hominem attack on the prosecutor in her own closing argument and accused the prosecutor of being unethical and disrespectful by calling Sherry Gattison as a witness when she knew she would commit perjury. In light of this, the assistant state's attorney's remark on rebuttal, while improper when viewed in isolation, was clearly invited by defense counsel and, as such, its prejudicial impact was not as great as if it had been unprovoked. State v. Falcone, supra, 191 Conn. at 23, 463 A.2d 558. We conclude, therefore, that while the prosecutor's "voucher" of Sherry Gattison's credibility was improper and may have been prejudicial in isolation, the defendant has not proved that it denied him the right to a fair trial. See State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984).

In addition, the trial court admonished the jury that the comments of counsel were arguments, and not evidence. Defense counsel did not object or except to this charge or claim that it was inadequate to offset the prosecutor's remarks. We conclude that the prosecutor's remarks were not so prejudicial as to render the curative instruction ineffective. See State v. Couture, supra, 194 Conn. at 562, 482 A.2d 300.

The defendant also claims that the prosecutor's reference to the fifth amendment presumption of innocence and its burden of proof beyond a reasonable doubt was improper. The relevant portions of the prosecutor's closing argument are as follows: "The defense relies on the fifth amendment burden of proof beyond a reasonable doubt in their argument to you.... And, ladies and gentlemen, the fifth amendment burden of proof beyond a reasonable doubt is a protection for the innocent. As much as it is your responsibility to use and apply the fifth amendment burden of proof beyond a reasonable doubt standard to protect the innocent, it is your concomitant responsibility not to allow the fifth amendment burden of proof beyond a reasonable doubt to be a shield for the guilty. Ladies and gentlemen, your responsibilities are equal on both sides. The burden of proof beyond a reasonable doubt is a shield for the innocent. It is not a barrier to conviction for the guilty.... To find reasonable doubt in this case, you would have to speculate. You would have to surmise. You would have to engage in conjecture. And under the fifth amendment burden of proof beyond a reasonable doubt, you...