State v. Gibson
Decision Date | 22 November 2011 |
Docket Number | No. 18402.,18402. |
Citation | 302 Conn. 653,31 A.3d 346 |
Parties | STATE of Connecticut v. Gary D. GIBSON. |
Court | Connecticut Supreme Court |
OPINION TEXT STARTS HERE
Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Christian Watson, assistant state's attorney, for the appellant (state).
David B. Rozwaski, special public defender, for the appellee (defendant).
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.
The defendant, Gary D. Gibson, was convicted, after a jury trial, of failure to appear in the first degree in violation of General Statutes § 53a–172 (a)(1),1 and was acquitted of a charge of stalking in the first degree in violation of General Statutes § 53a–181c. 2 The defendant appealed from the judgment of conviction to the Appellate Court, which reversed the conviction on the ground that improper statements by the prosecutor during closing argument had deprived the defendant of his constitutional due process right to a fair trial. State v. Gibson, 114 Conn.App. 295, 313, 969 A.2d 784 (2009). Thereafter, this court granted the state's petition for certification to appeal, limited to the following issues: State v. Gibson, 292 Conn. 916, 973 A.2d 1276 (2009). We conclude that the prosecutor's remarks were not improper and, accordingly, we reverse in part the judgment of the Appellate Court.
The jury reasonably could have found the following facts. On October 23, 2005, the victim, David Farineau, arrived at a Stop and Shop grocery store in Bristol and noticed a blue Jeep Liberty in a parking space on Pine Street. When the victim left the Stop and Shop a few minutes later, he noticed that the Jeep was behind him. The Jeep followed the victim to a gasoline station and continued to follow him as he drove home. The victim recognized the driver of the Jeep as the defendant because the defendant previously had been convicted of stalking the victim in violation of General Statutes § 53a–181d.
Thereafter, the defendant was charged with stalking in the first degree. In connection with that charge, the defendant appeared at a pretrial proceeding before the court, Dunnell, J., on April 4, 2006, at which the prosecutor, defense counsel and the court engaged in the following colloquy:
“[The Prosecutor]: Yes.
“[Defense Counsel]: May I have May 5, [2006] if that's convenient with the court?
“The Court: May 5?
“[Defense Counsel]: Yes, ma'am.
“The Court: Yes.”
When the defendant failed to appear in court on May 5, 2006, the trial court, upon the state's request, ordered that the defendant be rearrested and charged with failure to appear in the first degree. After being notified that there was a warrant out for his rearrest, the defendant turned himself in to the police on May 11, 2006.
At trial, the state introduced the transcript of the April 4, 2006 proceeding into evidence. It also presented as a witness, Laura Leigh, the head clerk of the Superior Court for the judicial district of New Britain, geographical area number seventeen at Bristol, who testified that, on May 5, 2006, the trial court had ordered that the defendant be rearrested and that the reason for the rearrest was that the defendant had failed to appear in court. The defendant testified that he had not appeared at the May 5, 2006 hearing because, three weeks after the April 4, 2006 court date, he had decided that he should enter the court date into his cell phone calendar and, at the time, he mistakenly believed that the hearing had been scheduled for May 16, 2006. He further testified that he had not failed to appear intentionally and that he had turned himself in to the police immediately upon learning that the trial court had ordered his rearrest.
During closing argument to the jury on the failure to appear charge, the prosecutor stated: ? Defense counsel did not object to these remarks.
The trial court, Schuman, J., instructed the jury that
The jury returned a verdict of not guilty on the stalking charge, but found the defendant guilty on the failure to appear charge. The trial court rendered judgment in accordance with the verdict and the defendant appealed from the judgment of conviction to the Appellate Court, claiming that the prosecutor's use of the phrase “I think” twice during closing argument constituted an improper expression of personal opinion, improperly suggested that the prosecutor had personal knowledge of the case that was unavailable to the jury, and deprived the defendant of his due process right to a fair trial. State v. Gibson, supra, 114 Conn.App. at 306–307, 969 A.2d 784. A majority of the Appellate Court agreed with the defendant and reversed the judgment of conviction on the failure to appear charge.3 Id., at 319, 969 A.2d 784.
This certified appeal followed. The state contends that the majority of the Appellate Court improperly determined that the prosecutor's remarks were improper because the prosecutor was merely exhorting the jury to draw reasonable inferences from the evidence. It further claims that, even if the remarks were improper, they did not rise to the level of a due process violation. The defendant contends that, to the contrary, the majority of the Appellate Court properly concluded that these remarks constituted an improper expression of the prosecutor's personal opinion regarding the defendant's guilt and his credibility, and that they were so egregious that “[i]t cannot be known whether the jury would have concluded that the defendant's conduct was wilful without the prosecutor's giving such a conclusion his personal stamp of approval....” Id., at 313, 969 A.2d 784.
State v. Grant, 286 Conn. 499, 545 n. 22, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008). (Internal quotation marks omitted.) State v. Salamon, 287 Conn. 509, 551, 949 A.2d 1092 (2008).
(Internal quotation marks omitted.) State v. Camacho, 282 Conn. 328, 367–68, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.Ct. 388, 169 L.Ed.2d...
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......." Given the context in which the challenged statements were made, we conclude that they were not improper. See State v. Gibson , 302 Conn. 653, 661, 31 A.3d 346 (2011) (prosecutor's statement, " ‘[d]id the defendant wilfully [fail] to appear in court ... I think he did,’ " was not impro......
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...286 Conn. 499, 542, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008) ; see also State v. Gibson , 302 Conn. 653, 663 n.4, 31 A.3d 346 (2011) (noting that "this court occasionally has skipped the first step of [the two step prosecutorial impropriety] analysi......
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