State v. Jordan

• Decision Date: 15 September 2009
• Docket Number: No. 29139.,29139.
• Citation: 978 A.2d 150,117 Conn.App. 160
• Parties: STATE of Connecticut v. Bryan JORDAN.
• Court: Connecticut Court of Appeals

978 A.2d 150

117 Conn.App. 160

STATE of Connecticut v. Bryan JORDAN.

No. 29139.

Appellate Court of Connecticut.

Argued May 27, 2009.

Decided September 15, 2009.

Daniel Jonah Krisch, special public defender, with whom was Brendon P. Levesque, special public defender, for the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John M. Waddock, supervisory assistant state's attorney, for the appellee (state).

FLYNN, C.J., and LAVINE and HENNESSY, Js.

HENNESSY, J.

The defendant, Bryan Jordan, appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a(a) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35(a). On appeal, the defendant claims that (1) the state's improper comments during closing argument to the jury deprived him of a fair trial and (2) the trial court improperly precluded him from presenting evidence regarding the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The charges in this case stem from the shooting death of Curtis Hannons on September 19, 2005. On the day of the shooting, the defendant, the victim and the victim's brother got into an argument. After the argument was broken up, the defendant got into his car and left. A few minutes later, the defendant returned, and another "heated" discussion took place with the victim. Several people congregated near the two and tried to calm down the defendant and the victim. Three eyewitnesses gave slightly varying accounts of what happened next. All agreed that they heard a gunshot and that the defendant then pulled out a gun and shot the victim once in the head. The defendant ran away, and the witnesses heard about six or seven more gunshots. The victim was transported to a hospital, where he died. The defendant was arrested in Georgia some time later.

The jury found the defendant not guilty of murder pursuant to General Statutes § 53a-54a(a), but guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of § 53a-55a(a) and carrying a pistol or revolver without a permit in violation of § 29-35. The court sentenced the defendant to a total effective term of forty-five years imprisonment. Additional facts will be set forth as necessary.

I

The defendant first claims that the state committed prosecutorial impropriety in its closing arguments to the jury. Specifically, he claims that the prosecutor improperly referred to facts that were not in evidence when arguing that the jury could infer intent to kill because it takes more effort to fire a revolver as compared to a semiautomatic weapon. The defendant also claims that the state's repetitive use of the rhetorical device, "doesn't it offend your common sense?" with regard to the evaluation of his credibility was improper. The state argues that the comment regarding the revolver was a fair inference from the evidence or, at most, a mistaken overstatement of the testimony. The state also argues that it is not improper for the state to ask the jury to use its common sense in evaluating credibility. Further, the state claims that even if there was prosecutorial impropriety, it did not deprive the defendant of a fair trial.

The governing legal principles on prosecutorial impropriety are well established. "[A] claim of prosecutorial impropriety, even in the absence of an objection has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987)." State v. Gould, 290 Conn. 70, 77, 961 A.2d 975 (2009). "Once prosecutorial impropriety has been alleged . . . it is unnecessary for a defendant to seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant's claim under Golding. . . . The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in . . . Williams." (Citation omitted; internal quotation marks omitted.) State v. Pascal, 109 Conn.App. 55, 66, 950 A.2d 566, cert. denied, 289 Conn. 917, 957 A.2d 880 (2008). "In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial." (Internal quotation marks omitted.) State v. Gould, supra, at 77, 961 A.2d 975.

"[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . In determining whether such [impropriety] has occurred, 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 [on] 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." (Internal quotation marks omitted.) Id., at 78-79, 961 A.2d 975.

"It is not improper for a prosecutor to ask the jury to draw inferences and to exercise common sense. . . . A prosecutor may urge the jury to find for stated reasons that a witness was truthful or untruthful. . . . A prosecutor may also remark on the motives that a witness may have to lie, or not to lie, as the case may be." (Citations omitted; internal quotation marks omitted.) State v. Felix, 111 Conn.App. 801, 811-12, 961 A.2d 458 (2008).

"If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the six factors enumerated in State v. Williams, supra, 204 Conn. at 540, 529 A.2d 653, whether the entire trial was so infected with unfairness so as to deprive the defendant of his due process right to a fair trial. . . . These factors include the extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state's case." State v. Pascal, supra, 109 Conn.App. at 67, 950 A.2d 566. We address the alleged improprieties in turn.

A

The first impropriety claimed by the defendant was the prosecutor's imploring the jury to draw an inference of intent from facts that were not in evidence. The state claims that the prosecutor drew a fair inference from the evidence but that at most it is a mistaken overstatement of the testimony and not an impropriety. We agree with the defendant that this statement rises to the level of an impropriety.

The challenged part of the state's rebuttal during closing argument was as follows: "Well, when you fire a revolver . . . it takes extra effort. It takes a little bit more conscious action on the part of the shooter. You have to cock the gun, pull the trigger; the semiautomatic, you just pull the trigger and it fires. I would suggest to you that that's important in terms of the issue of intent."

A review of the record reveals that the only testimony regarding the differences between a revolver and a semiautomatic weapon was from the state's firearms expert and was as follows: "[A] revolver is a handgun which uses [a] cylindrical, if you want to call it, magazine to hold the cartridges forward of the hammer but behind the barrel. The cartridges are loaded by hand into the cylinder, the cylinder is closed into the frame and then an independent pull of the trigger rotates the cartridge, aligns the cartridge to the barrel as the hammer goes forward [and] it fires the cartridge and it remains at rest. Until such time, you continue to fire. If there are no more cartridges to be fired, one removes the fired cartridges by opening the cylinder and then removing them manually from the frame of the firearm. A semiautomatic pistol uses a magazine which holds the cartridges, one on top of each other, which is usually placed in the handgrip portion of the firearm. The slide or the top of the frame of the firearm is pulled rearward exposing the cartridge on the top of the magazine; as the magazine is let go forward, it loads that cartridge into the barrel, which now starts that firing process. By pulling the trigger in a semiautomatic pistol, the gasses which push the bullet through the barrel of the firearm also are used to push the slide rearward; in doing so, it ejects the cartridge from the end of the barrel and then it is thrown from the firearm during that firing process. As the slide goes forward, it picks up another cartridge and makes it ready to be fired by pulling another independent pull of the trigger."

It is a fair interpretation of the testimony of the state's firearms expert for the prosecutor to maintain during closing argument that loading and firing a revolver is different from a semiautomatic weapon. To take that evidence, however, and to assert that it takes "extra effort" and "more conscious action" to fire a...