State v. Johnson

• Decision Date: 21 January 1997
• Docket Number: No. 14587,14587
• Citation: 44 Conn.App. 125,688 A.2d 867
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut, v. Anthony L. JOHNSON.

Page 867

688 A.2d 867

44 Conn.App. 125

STATE of Connecticut, v. Anthony L. JOHNSON.

No. 14587.

Appellate Court of Connecticut.

Argued Oct. 2, 1996.

Decided Jan. 21, 1997.

Dara K. Storch, Certified Legal Intern, with whom were Richard Emanuel, Assistant Public Defender, and, on the brief, Kyun Yi, Certified Legal Intern, for appellant (defendant).

Carolyn K. Longstreth, Assistant State's Attorney, with whom, on the brief, were Eugene J. Callahan, State's Attorney, and Steven Weiss, Assistant State's Attorney, for the appellee (State).

Before FOTI, SCHALLER and SHEA, JJ.

SHEA, Judge.

After a jury trial, the defendant was convicted of assault in the second degree in violation of General Statutes § 53a-60 (a)(2) ¹ and larceny in the sixth degree in violation of General Statutes § 53a-125b. ² The jury found him not guilty of robbery in the first degree, as charged in the first count of the substitute information. In his appeal from the judgment, the defendant claims that his right to a fair trial was violated (1) by remarks of the prosecutor during closing argument, (2) by the trial court's instructions on circumstantial evidence, and (3) by the selection of two of the six jurors while the original trial judge was absent and a different judge was presiding over the voir dire. We affirm the judgment.

From the evidence presented, the jury could reasonably have found that on September 13, 1994, at approximately 7:15 a.m., the defendant entered a supermarket in Stamford using a cane because of a cast on his foot. He attracted the attention of Carl Anderson, a store security officer, who continued to observe the defendant as he picked up several packages of film. Anderson saw the defendant stop in one of the aisles and put film in several pockets of his clothing. The defendant then went to the delicatessen counter and ordered a sandwich. The clerk handed him the sandwich wrapped in paper. Anderson observed the defendant stuff the sandwich into his pants and go to the other end of the store, where he talked with some store employees. Anderson went to the front of the store and waited for the defendant.

When the defendant came to the front of the store, he walked past the cashiers and proceeded toward the exit door. At that point, Anderson and Peter Pearce, the store manager, who had seen the defendant walk past the cashiers, approached the defendant. Anderson told the defendant that he had been watched and asked whether he had forgotten to pay for something. The defendant responded affirmatively. He removed a package of film from one of his pockets and said that he wanted to pay for it. When Anderson said he believed that the defendant had additional rolls of film, the defendant produced several other film packages. After Anderson mentioned the sandwich Anderson and Pearce informed the defendant that they would have to call the police. The defendant asked them not to call the police and offered to pay for the merchandise. Pearce replied that it was too late and told the defendant to come with him and Anderson to the rear of the store. After the defendant had responded by pushing them aside in an attempt to move toward the exit, Anderson and Pearce each took hold of one of his arms and escorted him down a grocery aisle to the rear of the store. The defendant began to curse and, halfway down the aisle, he freed his right arm and swung his cane at Pearce, striking him three times between the eyes. Anderson and Pearce wrestled the defendant to the floor. After he seemed to calm down, they helped him to stand up and pulled him into a back room to await the police.

the defendant removed a wrapped sandwich from inside his pants.

In the room, the defendant said he would not create any more trouble, but, when his arms were released, he turned and punched Anderson in the nose, causing it to bleed. Pearce and Anderson again forced the defendant to the floor and sat on him to await the arrival of the police, whom another store employee had called.

Pearce sustained a hairline fracture of his nose and two black eyes. When the police arrived, they handcuffed the defendant and took him to the police station.

I PROSECUTOR'S ARGUMENT

The defendant claims that the prosecutor, during his summation to the jury, violated the defendant's constitutional right to a fair trial by referring to facts on which evidence had been excluded by the trial court and also by making remarks that infringed upon his fifth amendment right not to testify at trial.

A

During the cross-examination of Anderson, defense counsel inquired whether his employer, in the course of training him as a security officer, had informed him of the ramifications of a false arrest and the responsibility the store would bear for injury to a person claimed to have been shoplifting. Anderson responded affirmatively. After similar testimony was elicited from Pearce during cross-examination, the state on redirect examination, referring to defense counsel's questions concerning false arrest, inquired whether the defendant had ever made any claim of false arrest in connection with the incident at the Stamford store. Pearce responded, "None whatsoever." Defense counsel objected that the question called for speculation. The court sustained the objection on the ground of irrelevance and ordered the answer stricken.

During his summation for the state, the prosecutor referred to the questions asked of Anderson and Pearce concerning false arrest: "Well, the defendant never claimed any false arrest when the police were at the scene and they never claimed any false [arrest] through any of the witnesses. You didn't hear it." Later, in support of the credibility of the state's witnesses, he argued: "[Y]ou remember that they testified under oath and there is no evidence that they have any beef with the defendant. There is no evidence that there was any law suit." (Emphasis added). After the defendant had presented his argument and the state had concluded its rebuttal, the defendant, in the absence of the jury, objected to the state's references to false arrest and to a civil suit therefor on the ground that the court had sustained an objection to the state's inquiry about such an action. The court remarked that it was the defendant who had opened the door by his questions to Anderson and Pearce about the training they had received from their employer regarding false arrest and ruled that the prosecutor's argument was proper.

On appeal, the defendant relies on the well established principle that it is improper for counsel to refer to facts that are not supported by the evidence. State v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987); State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983). The remark of the prosecutor that "[t]here is no evidence that there was any law suit," however The defendant also claims that the statement regarding the absence of evidence of a suit for false arrest was a deliberate defiance of the trial court's ruling striking the defendant's response to the prosecutor's inquiry concerning such an action. In State v. Ubaldi, supra, 190 Conn. at 569-70, 462 A.2d 1001, our Supreme Court exercised its supervisory power to grant a new trial where the prosecutor's summation referred to evidence that the trial court had excluded. "Where a prosecutor ... interjects remarks deliberately intended to undermine the rulings of the trial court to the prejudice of the defendant, his conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal." Id. at 575, 462 A.2d 1001. The ruling of the trial judge that the prosecutor's comment was "proper argument" indicates that he did not regard it as offensive. We also do not view the challenged remark of the prosecutor in this case as a deliberate flaunting of the trial court's ruling on evidence, but as an appropriate comment on the absence of a circumstance that, if it had been present, would have militated against the credibility of the state's witnesses by indicating some interest on their part in the outcome of the trial.

does not violate that principle but, in the context of the preceding statement that "there is no evidence that [Anderson and Pearce] have any beef with the defendant," simply pointed out one circumstance arguably reinforcing the credibility of his witnesses. There is no prohibition against relevant argument based on the absence of evidence in a case that an opposing party would ordinarily be expected to produce if it existed. Matza v. Matza, 226 Conn. 166, 186, 627 A.2d 414 (1993); Tragakiss v. Dowling, 183 Conn. 72, 74, 438 A.2d 818 (1981). Even if there had been no prior reference to a civil suit for false arrest, the remark that a witness had no reason, such as an interest in a lawsuit, to color his testimony would not have been improper.

B

The defendant claims that portions of the prosecutor's summation also constituted an impermissible comment on the defendant's failure to testify at trial in violation of his fifth amendment privilege against self-incrimination as decided in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The defendant did not raise this claim either in the trial court or in his original brief in this court. At oral argument, however, we granted his motion for permission to raise the self-incrimination issue in a supplementary brief because, despite the failure to raise it previously, it qualifies for appellate review under the strictures of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state does not dispute that "the claim is of constitutional magnitude alleging the violation of a fundamental [constitutional] right" and that "the record is adequate to review the alleged claim of error." Id. at 239, 567 A.2d 823. Appellate review of similar belated claims of...