State v. Martinez

• Decision Date: 01 December 2015
• Docket Number: No. 19198.,19198.
• Citation: 319 Conn. 712,127 A.3d 164
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Anthony MARTINEZ.

319 Conn. 712

127 A.3d 164

STATE of Connecticut

v.Anthony MARTINEZ.

No. 19198.

Supreme Court of Connecticut.

Argued April 23, 2015.

Decided Dec. 1, 2015.

James M. Ralls, assistant state's attorney, with whom, on the brief, were John Smriga, state's attorney, and Nicholas Bove, senior assistant state's attorney, for the appellant (state).

Alice Osedach, assistant public defender, for the appellee (defendant).

ROGERS, C.J., and PALMER, ZARELLA, McDONALD, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.

ZARELLA, J.

The principal issue in this certified appeal is whether the Appellate Court properly reversed the judgment of the trial court on the ground that the senior assistant state's attorney (prosecutor) made certain improper comments during closing argument that deprived the defendant, Anthony Martinez, of a fair trial. Following his conviction of possession of narcotics with intent to sell in violation of General Statutes § 21a–277 (a) and conspiracy to possess narcotics with intent to sell in violation of § 21a–277 (a) and General Statutes § 53a–48 (a), the defendant appealed to the Appellate Court, which reversed the judgment of conviction and ordered a new trial. State v. Martinez, 143 Conn.App. 541, 543, 581, 69 A.3d 975 (2013). On appeal to this court, the state challenges the Appellate Court's conclusion that the prosecutor violated a court order when he stated during closing argument that no money from an alleged drug transaction was found on the defendant's person and referred to facts outside the record regarding the custom and practice of narcotics dealers when he argued that it would be "logical" and "[make] sense" for the defendant to ensure that any drugs or money involved in the transaction was held by his coconspirator. The defendant contends that the Appellate Court properly concluded that the state had violated a court order concerning the permissible boundaries of argument, made factual assertions to the jury he knew were untrue and compounded these improprieties by arguing facts unsupported by the evidence regarding the modus operandi of drug dealers, thus depriving the defendant of his due process right to a fair trial. We conclude that the prosecutor's argument was not entirely proper, but we do not agree with the defendant that the improper argument rendered the trial fundamentally unfair. Accordingly, we reverse the judgment of the Appellate Court.

I

We begin with the following relevant facts set forth in the Appellate Court's opinion. "On June 2, 2009, Lieutenant Christopher LaMaine, of the Bridgeport [P]olice [D]epartment, was conducting an investigation into suspected drug activity at a particular residence in [the city of] Bridgeport. While conducting surveillance of the residence, LaMaine observed two individuals, later identified as Javier Nevarez and Camilla Blakes, approach the residence in what he concluded was an attempt to purchase narcotics. Nevarez and Blakes left the residence without engaging in a drug transaction and, instead, drove their car to Washington Park in Bridgeport, an area known for drug activity. LaMaine followed Nevarez and Blakes and parked his surveillance van on the edge of the park. From the backseat of the van, through tinted windows, LaMaine watched Nevarez and Blakes approach a male who directed them to a bench farther into the park. The defendant and [Mari] Vargas were sitting on that park bench with their backs toward LaMaine.

"Eighty-two yards away from the bench where the defendant and Vargas were sitting, LaMaine used binoculars to view the scene.... [T]he defendant and Vargas sat next to each other, almost shoulder to shoulder, with the defendant on the right side of the bench and Vargas in the middle. Nevarez and Blakes approached the defendant, and Nevarez and the defendant appeared to speak briefly. The defendant and Vargas both then looked down at a common point in their laps. Although LaMaine could not see their hands, laps, or what they were looking at, from the way they both turned toward each other and down, LaMaine believed that the defendant and Vargas appeared to exchange something. The defendant then reached up to a point at which his hand was visible to LaMaine, and LaMaine observed him appear to exchange something with Nevarez. Nevarez and Blakes then turned and walked back toward their vehicle, and, as Nevarez walked, he inspected something in his hand, cupping it in one palm and poking it with his other finger, consistent, according to LaMaine, with an inspection of drugs.

"After Nevarez and Blakes left the bench, a second man approached the defendant and another apparent exchange took place between the defendant and Vargas, and then between the defendant and the second man, in the exact same manner that had occurred with Nevarez. The second man walked away and was never identified or apprehended. As Nevarez and Blakes got back into their car, LaMaine radioed nearby officers to stop the car to check for narcotics. As the officers were approaching, Nevarez and Blakes pulled the vehicle over and parked. Officer Gregory Iamartino, who was driving an unmarked vehicle, exited his vehicle and went to the driver's side of Nevarez' car. When Nevarez noticed Iamartino, [Nevarez] placed an item into his mouth and swallowed it. Iamartino saw a glass crack pipe and two small bags of what appeared to be crack cocaine in the center console of the vehicle between Nevarez and Blakes. Iamartino relayed back to LaMaine that the car was stopped and suspected narcotics were seized. A subsequent field test performed by Officer Nicole Donawa yielded a positive result for the presence of crack cocaine and heroin in the drugs found in the car.

"LaMaine called in additional units of the narcotics team, which then entered Washington Park and arrested the defendant and Vargas. When officers approached the defendant, he did not attempt to run away or resist arrest, and no contraband was found on him. Officer Barbara Gonzalez searched Vargas and, after noticing the top of a plastic bag sticking out of the top of her pants, discovered a plastic bag containing what appeared to be small parcels of narcotics concealed in her pants. Gonzalez also found $25 on Vargas. The substances in the bags were field tested and subsequently sent to the state [Controlled Substances and Toxicology Laboratory] where the substances tested positive for cocaine and heroin.

"The state charged the defendant ... with one count of possession of narcotics with intent to sell in violation of § 21a–277 (a), one count of possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a–278a (b), one count of conspiracy to possess narcotics with intent to sell in violation of §§ 53a–48 (a) and 21a–277 (a), and one count of conspiracy to possess narcotics with intent to sell within 1500 feet of a school in violation of [§§ 53a–48 (a) and] 21a–278a (b)." (Footnotes omitted.) State v. Martinez, supra, 143 Conn.App. at 544–46, 69 A.3d 975.

The defendant elected to be tried by a jury. During pretrial proceedings, the defendant filed a motion to suppress $60 found in his possession because the money was seized without a warrant. The trial court granted the motion and ordered that "the $60 will not be the subject of testimony during the trial."

Approximately one week later, the defendant filed a motion in limine in which he sought to preclude the state and its witnesses from referring, directly or indirectly, to " 'deal[s],' " " 'transaction[s],' " or " 'hand-to-hand drug exchange[s]' " between the defendant and any other person because such terms implied an exchange of money for drugs and thus would be highly prejudicial. The court denied the motion, explaining that "the motion to suppress has been won, and it will keep the state from introducing any evidence whatsoever that [the police] found any money on your client, and it permits you to argue they didn't find any money on him; the absence of evidence of a transaction."

The following day, defense counsel renewed her argument that testimony referring to a transaction between the defendant and another person would suggest that money had been exchanged in violation of the suppression order. When counsel further noted that it would be unfair for the defense to suggest that no money was found on the defendant because money was found but suppressed, the court responded: "But you could argue at closing, can't you, the absence of money?" Counsel replied that this might misstate the evidence because money in fact was found on the defendant, to which the court replied that "[i]t doesn't misstate the evidence" and that counsel was "certainly ... free to argue it ... at closing." The following colloquy then ensued:

"The Court: ... I think you can argue that no money was found on [the defendant] at closing if there's no evidence—that you didn't hear evidence of any cash found on him.

"[Defense Counsel]: Exactly. And that—that's probably the furthest I could go with that because that's the actual state of affairs, that there was a legal operation here that kept—

"The Court: You didn't hear any evidence—

"[Defense Counsel]: Keeps—

"The Court: Right?

* * *

"The Court: And you can do that, and that's pretty powerful, which is why you won the motion to suppress. I assume that's why you filed it in the first place.

"[Defense Counsel]: It is—it is powerful, Your Honor.

"The Court: All right."

The court reiterated that it was denying the defendant's request in his motion in limine to preclude the parties from referring, directly or indirectly, to " 'deal[s],' " " 'transaction[s],' " or " 'hand-to-hand drug exchanges' " before ruling as follows: "The court's ruling suppressing the money does only that—it suppresses the evidence seized.... And the state cannot refer to the money that [was] seized from the defendant. And [defense counsel] and the defense are free to argue at closing that there was no evidence of money found on the defendant.

"The fact...