State v. McCleese

• Decision Date: 21 March 2006
• Docket Number: No. 26289.,26289.
• Citation: State v. McCleese, 892 A.2d 343, 94 Conn.App. 510 (Conn. App. 2006)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. William McCLEESE.

892 A.2d 343

94 Conn.App. 510

STATE of Connecticut v. William McCLEESE.

No. 26289.

Appellate Court of Connecticut.

Argued January 13, 2006.

Decided March 21, 2006.

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Suzanne Zitser, assistant public defender, with whom, on the brief, were E. Paul Haringa, former assistant public defender, and Richard Emanuel, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Roger S. Dobris, senior assistant state's attorney, for the appellee (state).

BISHOP, McLACHLAN and DUPONT, Js.

BISHOP, J.

The defendant, William McCleese, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a(a), conspiracy to commit murder in violation of General Statutes §§ 53a-54a(a) and 53a-48(a), and assault in the first degree in violation of General Statutes § 53a-59(a)(5). On appeal, the defendant claims that (1) the trial court abused its discretion when it denied the defendant's motion for a mistrial and (2) he was denied a fair trial as a result of prosecutorial misconduct during closing arguments to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of January 7, 2001, the defendant and his half brother, Anthony Johnson, ambushed and murdered Daniel Moorer as he was engaged in a conversation with his friends, James Ford and Steven Godfrey, in front of the apartment of Moorer's father on Munson Street in New Haven.

The defendant conspired to murder Moorer the evening before, on January 6, 2001, with Johnson and his cousin, Jermaine Mitchell, because the defendant believed that Moorer was "messing with" Johnson. The day of the murder, Mitchell drove the defendant and Johnson to Munson Street. As they drove along Munson Street, the defendant and Johnson saw the victim, and then drove to a parking lot located behind the housing complex and parked. The defendant gave Johnson a.45 caliber semiautomatic handgun and armed himself with a .38 caliber revolver. While Mitchell remained in the car, the two men proceeded toward Munson Street and opened fire on Moorer, hitting him several times as he tried to run away. When Moorer collapsed on the sidewalk, the defendant and Johnson continued shooting him, hitting him multiple times. One of the gunshots fired by Johnson grazed the cheek of Ford, causing Ford to take cover across the street. After firing seven gunshots into Moorer's body, the defendant and Johnson ran from the scene. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court abused its discretion when it denied the defendant's motion for a mistrial. Specifically, the defendant claims that the state's inadvertent reference to his incarceration, in the presence of the jury during trial, was so prejudicial as to constitute a ground for a mistrial and that the court's decision to give a curative instruction only highlighted the prejudicial information. We are not persuaded.

The following additional facts are pertinent to our discussion of the defendant's claim. At trial, after Johnson had testified against the defendant, implicating him in the murder of Moorer, the defense called Erica Green to impeach the testimony of Johnson. Green testified that she had spoken to Johnson recently "about him getting on the [witness] stand and lying against his brother." On cross-examination the state sought to establish that Green was a biased witness because she knew the defendant and his family. During questioning, the state asked Green if the defendant had called her from jail and whether the defendant was able to place telephone calls from jail.¹ The defense objected to the state's reference to the defendant's incarceration and moved for a mistrial.

The court denied the defendant's motion for a mistrial, holding that it did not find that the reference to the defendant's incarceration rose to the level of substantial prejudice or that it could not be remedied with a curative instruction. Defense counsel asked that the court not give a curative instruction because he believed it would highlight the testimonial exchange. The court disagreed and assured defense counsel that the curative instruction would not "suggest that he is currently in jail." The court then gave the curative instruction, over defense counsel's objection.²

As we have stated, "[t]he decision whether to grant a mistrial is within the sound discretion of the trial court. . . . [O]n appeal, the defendant bears the burden of establishing that there was irreparable prejudice to the defendant's case such that it denied him a fair trial." (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 87 Conn.App. 93, 99, 864 A.2d 869 (2004), cert. denied, 273 Conn. 919, 871 A.2d 371 (2005). "While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided." (Internal quotation marks omitted.) Id. "Where the misconduct occurs and the trial judge, as a minister of justice, intervenes in a timely way and gives a proper curative instruction, the problem is cured." State v. Fauci, 87 Conn.App. 150, 176 n. 2, 865 A.2d 1191, cert. granted on other grounds, 273 Conn. 921, 871 A.2d 1029 (2005). "Our jurisprudence is clear. . . that unless there is a clear indication to the contrary, a jury is presumed to follow the court's instructions." (Internal quotation marks omitted.) State v. Boscarino, 86 Conn.App. 447, 460, 861 A.2d 579 (2004).

Our review of the record satisfies us that the court's immediate curative instruction obviated any prejudice that may have been created by the state's reference to the defendant's incarceration. We reject the defendant's argument that the reference to the defendant's incarceration was so prejudicial that it could not be cured by the instruction and that the instruction worked only to highlight it. "Not every reference to a defendant's pretrial incarceration is grounds for a mistrial. . . . There is nothing sacrosanct about a defendant's pretrial incarceration." (Internal quotation marks omitted.) State v. Marshall, 87 Conn.App. 592, 604, 867 A.2d 57, cert. denied, 273 Conn. 925, 871 A.2d 1032 (2005).

In Marshall, we observed that where the "jury knew that the defendant had prior convictions and was on trial for serious crimes . . . it would not be surprising for the jurors to have knowledge of or suspicions regarding the defendant's incarceration." Id., at 604-605, 867 A.2d 57. Accordingly, we held that the prosecution's two references to "lockup" did not deprive the defendant of a fair trial. Id., at 605, 867 A.2d 57. Here, the defendant was on trial for murder, conspiracy to commit murder and assault. It is reasonable to believe that the jury could have suspected that the defendant, at some point before trial, had been incarcerated. In this instance, we believe the court's curative instruction was an adequate response to the state's inadvertent question regarding the defendant's pretrial incarceration.

II

Next, the defendant claims that the state committed prosecutorial misconduct during its closing argument to the jury. Specifically, the defendant claims that the prosecutor committed misconduct when, during closing argument, he (1) mischaracterized and denigrated the defendant's closing argument, (2) improperly vouched for the credibility of the state's witnesses and (3) referred to facts that were not in evidence. Although the defendant did not object to any of the alleged misconduct challenged on appeal, he maintains that he is entitled to a new trial on the ground that the alleged misconduct deprived him of a fair trial. We disagree.

We begin by setting forth the applicable standard of review. We review unpreserved claims of prosecutorial misconduct by applying the factors set out in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). State v. Serrano, 91 Conn.App. 227, 231, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). "[I]n analyzing claims of prosecutorial misconduct, we engage in a two step analytical process. The two steps are separate and distinct: (1) whether misconduct occurred in the first instance; and (2) whether that misconduct deprived a defendant of his due process right to a fair trial. Put differently, misconduct is misconduct, regardless of its ultimate effect on the fairness of the trial; whether that misconduct caused or contributed to a due process violation is a separate and distinct question. . . ." (Internal quotation marks omitted.) Id.

"Only if we conclude that prosecutorial misconduct has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial. In doing so, we must determine whether the sum total of [the prosecutor's] improprieties rendered the defendant's [trial] fundamentally unfair, in violation of his right to due process. . . . The question of whether the defendant has been prejudiced by prosecutorial misconduct, therefore, depends on whether there is a reasonable likelihood that the jury's verdict would have been different absent the sum total of the improprieties. . . . This inquiry is guided by an examination of the following Williams factors: the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct. . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the...