State v. Lemon, (SC 15739)

Decision Date18 May 1999
Docket Number(SC 15739)
CourtConnecticut Supreme Court

Callahan, C. J., and Berdon, Norcott, Palmer and McDonald, JS.

Neal Cone, assistant public defender, for the appellant (defendant). Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Linda N. Howe, senior assistant state's attorney, for the appellee (state).



Following a jury trial, the defendant, Billie Lemon, was convicted of murder in violation of General Statutes § 53a-54a (a).1 The trial court rendered judgment in accordance with the verdict, and the defendant appealed to this court.2 The defendant claims on appeal that the prosecutor, during her closing argument to the jury, improperly commented on the defendant's failure to testify. We disagree with the defendant and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In June, 1996, Gray Copeland and the defendant's mother, Geraldine Lemon, resided together in a first floor apartment at Cambridge Apartments (apartment) on Main Street in Bridgeport. At approximately 6:30 p.m. on June 29, 1996, two security officers, Joseph Gadson and Arquellio Caraballo, who were employed by the apartment's management, observed the defendant trying to enter the building. Because the apartment manager had instructed Gadson and Caraballo not to allow the defendant on the premises, Gadson and Caraballo asked the defendant to leave. When the defendant failed to comply with the security officers' request, they contacted the police. A Bridgeport police officer arrived at the scene and spoke to the defendant, who explained that her mother and son resided in the building. After ascertaining that the defendant's mother and son were not at home, the officer asked the defendant to leave and to return only when her mother was there. The defendant then left the premises.

Approximately one hour later, the defendant returned and gained entry into her mother's apartment. Copeland, who was alone in the apartment at the time, left the apartment to contact security. Copeland, along with Gadson and Caraballo, returned to the apartment and observed the defendant cooking pork chops in the kitchen. The security officers, who observed that the defendant appeared to be intoxicated, asked her to leave, but she would not do so. They then advised Copeland to call the police. Copeland called 911, but because he also had been drinking, he had difficulty communicating with the 911 dispatcher. As a result, Gadson took the telephone receiver from Copeland and proceeded to explain the situation to the dispatcher.

In the meantime, the defendant asked Copeland why he was having her removed from the apartment. Copeland, who was standing in the doorway to the pantry and looking down, did not respond. The defendant then emerged from the kitchen with a knife and, while screaming an obscenity at Copeland, lunged toward him and stabbed him in the neck.3 The knife penetrated three inches into Copeland's neck, severing an artery. Copeland, bleeding profusely, ran out of the apartment and collapsed on the front lawn. Gadson, who was still on the telephone with the 911 dispatcher, reported the stabbing and requested an ambulance. Copeland, however, died from the stab wound shortly after the attack.

Meanwhile, the defendant had fled from the apartment, swinging the knife at Gadson and Caraballo as she fled. The police arrived and apprehended the defendant about one and one-half blocks from the apartment. Thereafter, Gadson and Caraballo positively identified the defendant as Copeland's assailant. The knife that the defendant used to stab Copeland was found in a wooded area behind the apartment.

The defendant did not testify at trial, nor did she call any witnesses in her defense. Rather, she relied primarily on the testimony of Gadson and Caraballo to establish that she had been intoxicated at the time of the stabbing.

In the prosecutor's closing argument to the jury, the prosecutor focused on evidence that, in the state's view, established that the defendant had stabbed Copeland with the intent to kill him. During the course of the argument, the prosecutor made the following comments that are the subject of this appeal: "You have seen the defendant. You have a general idea of her size, her height. You have heard a description of ... Copeland's height and I would ask you to keep in mind that, basically, we are talking about using a knife at the level of someone's body where it's basically the eye level of the defendant. For her to claim, gee, I didn't know I was hitting him in a vital area, of his body is ridiculous. If all she meant to do was to hurt him, you have all the areas that are more like the arms level, which she could have hit. No. She went for the neck. You've heard the expression `go for the jugular.' Well, that's what she did. She went for his neck.

"You will probably be hearing some argument from defense [counsel] regarding a defense of intoxication and that appears to be the only defense that can be raised here is well, gee, I must have been so drunk I didn't know what I was doing .... I'm going to save some of my argument to counter what I feel [defense counsel's] argument would be." (Emphasis added.) The defendant raised no contemporaneous objection to these remarks.

In defense counsel's closing argument, he underscored the evidence of intoxication, arguing to the jury that the defendant "was incapable of forming any intent to kill based upon the circumstances as the evidence shows what was going on in the apartment at that time or ... simply put ... that she was too drunk to know what she was doing." Defense counsel continued: "[T]he bottom line is that the [defendant] has claimed through state's witnesses ... Caraballo and ... Gadson that she did not have the capacity, the capability or the intention to kill [Copeland]. What ever happened happened, but it was not because she intended to kill him because she was such under the influence of alcohol that she could not formulate that intent. That in a nutshell is the defendant's case.... [Y]ou have our position. Because of her alcohol, because her—what she did show, not that she intended to hurt anybody or kill anybody, but that she just didn't know what she was doing."

During the state's rebuttal argument, the prosecutor urged the jury to focus on the defendant's conduct before, during and after the stabbing. The prosecutor maintained that the defendant's conduct strongly supported the state's contention that she had killed Copeland with the intent to do so.

At the conclusion of the parties' closing arguments, the trial court instructed the jury on the crime of murder and on the lesser included offenses of intentional manslaughter in the first degree, reckless manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide. In light of the trial testimony that the defendant appeared to be intoxicated on the evening of the stabbing, the court also instructed the jurors that if they found that the defendant had been under the influence of an intoxicant at that time, they then must determine what effect, if any, her intoxication had on her ability to form the specific intent required to commit murder or, alternatively, one of the lesser included offenses. See General Statutes § 53a-7.4 Finally, the trial court also charged the jury as follows: "The defendant has not testified in this case. An accused person has an option to testify or not to testify at the trial. She is under no obligation to [testify]. She has a constitutional right not to testify. You may not draw any unfavorable inference from the accused's election not to testify."5

Four days after the jury had returned its guilty verdict, the defendant filed a motion for a new trial, claiming that the prosecutor's use of the word "I" when referring to the defendant in closing argument constituted an improper comment on the defendant's failure to testify. The trial court denied the defendant's motion and, thereafter, rendered judgment sentencing her to a term of imprisonment of thirty years. This appeal followed.

On appeal, the defendant claims that the prosecutor's closing argument improperly focused the jury's attention on her failure to testify in violation of the fifth amendment to the United States constitution,6 and article first, § 8, of the Connecticut constitution.7 The defendant's federal constitutional claim is twofold. First, the defendant contends that she is entitled to prevail under the test that we previously have adopted for determining whether a statement made by a prosecutor during closing argument constitutes an improper comment on a defendant's failure to testify. Alternatively, the defendant maintains that we should reject our current test in favor of a less rigorous standard, and that she is entitled to a new trial under that less stringent test. The defendant also asserts that we should adopt that new test for purposes of the state constitution. With respect to the defendant's federal constitutional claim, we adhere to the test that we previously have embraced for fifth amendment purposes and conclude that, upon application of that test, the defendant is not entitled to a new trial. With respect to the defendant's state constitutional claim, we need not decide whether to adopt the new test that she advocates because we conclude that she cannot prevail under that test.8 Accordingly we affirm the judgment of the trial court.9

"It is well settled that comment by the prosecuting attorney ... on the defendant's failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, ...

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