State v. Payne, (SC 16554)

• Decision Date: 11 June 2002
• Docket Number: (SC 16554)
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. LEOTIS PAYNE

260 Conn. 446

797 A.2d 1088

STATE OF CONNECTICUT v. LEOTIS PAYNE

(SC 16554)

Supreme Court of Connecticut.

Argued January 11, 2002.

Officially released June 11, 2002.

Sullivan, C. J., and Norcott, Katz, Palmer and Vertefeuille, Js. Conrad Ost Seifert, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, senior assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, C. J.

The sole issue in this appeal is whether, in the exercise of our supervisory authority over the administration of justice, the defendant should be afforded a new trial because of pervasive prosecutorial misconduct during the closing arguments of his trial. The defendant, Leotis Payne, appeals from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c,¹ robbery in the first degree in violation General Statutes § 53a-134 (a) (2),² robbery in the second degree in violation of General Statutes § 53a-135 (a) (1),³ larceny in the second degree in violation of General Statutes § 53a-123 (a) (3),⁴ carrying a pistol without a permit in violation of General Statutes § 29-35⁵ and criminal possession of a firearm in violation of General Statutes (Rev. to 1993) § 53a-217 (a).⁶State v. Payne, 63 Conn. App. 583, 777 A.2d 731 (2001). The defendant claims that during the trial the prosecutor engaged in improper conduct including: (1) stating that the defendant likely was involved in another crime after the one for which he was being tried; (2) appealing to and inflaming the jury's emotions; (3) vouching for the credibility of a prosecution witness and his own credibility as a prosecutor; and (4) stating that the defendant had a strong motive to lie to the jury because he was going to receive a substantial sentence if convicted in this case. The state counters that reversal would be inappropriate in this case because prejudice to the defendant was nonexistent or minimal, retrial would have practical problems and cause emotional trauma to victims, and there were other adequate sanctions available. We agree with the defendant and reverse the judgment of the Appellate Court.

I FACTS AND PROCEDURAL HISTORY

The opinion of the Appellate Court contains the following facts. "On October 24, 1994, Jose Marrero, his future wife, Amy Cobain, Devon McFarlane and the victim, Louis Hood (victim's group), were on Frank Street in New Haven. Marrero, Hood and Cobain entered a store for the purpose of getting change for Marrero's $100 bill. At the same time, the defendant, Eaker McClendon and Alexander Lacks (defendant's group) were outside the store, talking with Steven Thomas. The defendant's group also entered the store when Marrero attempted to change his $100 bill.

"While returning to Hood's residence, the victim's group was followed by the defendant's group. Thereafter, the defendant approached Cobain and placed a gun to her head. Marrero jumped between the defendant and Cobain, and urged the defendant in street parlance not to shoot. Cobain and McFarlane ran off down the street. The defendant then told Marrero to give up his valuables, proceeded to rifle through his pockets and removed his money. The defendant then backed up and began to squeeze the trigger of his handgun. Hood was fatally shot in his attempt to push Marrero away. Cobain and McFarlane heard the shot. McFarlane glanced back and saw the defendant with a gun in his hand.

"Officer Edwin Rodriguez of the New Haven police department was the first police officer to arrive at the scene. He observed Hood motionless and unconscious on the ground with a bullet wound in his left arm. No handgun or spent shells were found at the scene. An autopsy revealed that Hood's left arm had been crossed in front of his chest when he was shot. The bullet struck his arm and moved through his chest cavity." Id., 585-86.

The defendant was convicted after a jury trial and subsequently appealed his conviction to the Appellate Court. The defendant claimed that the trial court improperly: (1) failed to dismiss a juror who appeared to have slept during the trial; (2) refused to grant a new trial because of allegedly improper remarks by the prosecutor; (3) gave the jury instructions relative to the defendant's consciousness of guilt; and (4) instructed the jury that reasonable doubt is not doubt suggested by the "`ingenuity of counsel.'" Id., 585. After the Appellate Court affirmed the judgment of the trial court; id.; we granted the defendant's petition for certification to appeal limited to the following issue: "In the exercise of our supervisory authority over the administration of justice, should the defendant be afforded a new trial due to pervasive prosecutorial misconduct during closing argument?" State v. Payne, 257 Conn. 904, 777 A.2d 195 (2001). We conclude that he should.

II SUPERVISORY AUTHORITY

Although prosecutorial misconduct is often examined under the rubric of a defendant's due process protections, as in our recent decision in State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002), our review in the present case is limited to whether reversal is required under our supervisory authority. "As an appellate court, we possess an inherent supervisory authority over the administration of justice. . . . The standards that we set under this supervisory authority are not satisfied [merely] by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law. . . . Rather, the standards are flexible and are to be determined in the interests of justice." (Citations omitted; internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 346-47, 662 A.2d 1199 (1995). "Of course, our supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Thus, [e]ven a sensible and efficient use of the supervisory power . . . is invalid if it conflicts with constitutional or statutory provisions." (Citation omitted; internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901 (1997).

"[W]hen prosecutorial misconduct is not so egregious as to implicate the defendant's right to a fair trial, an appellate court may invoke its supervisory authority to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. See, e.g., 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)]; see also State v. Ruiz, 202 Conn. 316, 330, 521 A.2d 1025 (1987)." State v. Pouncey, supra, 241 Conn. 811-12. In Pouncey, we previously have recognized that reversal is appropriate when there has been a pattern of misconduct across trials, not just within an individual trial. Id., 815-16 (noting that "the defendant does not claim either that the assistant state's attorney in this case previously has used racially charged rhetoric in her arguments to other juries" and concluding that "[i]f such a pattern or practice of misconduct were discernible . . . reversal of the defendant's conviction would serve the important purpose of demonstrating that such conduct cannot, and will not, be tolerated").

Accordingly, we exercise our supervisory authority in this context to redress repeated and deliberate misconduct by a prosecutor seeking to increase the likelihood of conviction even though that conduct does not necessarily require reversal as a due process violation. In accordance with the cases cited previously, we pay particular attention to the fact that the prosecutor knew or should have known that the conduct was improper and was part of a pattern of similar misconduct in other cases. We exercise our supervisory authority in order to protect the rights of defendants and to maintain standards among prosecutors throughout the judicial system rather than to redress the unfairness of a particular trial. We do so in order "to send a strong message that such conduct will not be tolerated." Id., 812.

The standards by which we evaluate claims of prosecutorial misconduct are shaped by the unique role prosecutors have in our judicial system. "[T]he prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates. [A] prosecutor is not an ordinary advocate. His [or her] duty is to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury. . . . [B]y reason of his [or her] office, [a prosecutor] usually exercises great influence upon jurors. His [or her] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because [a prosecutor] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment." (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 336, 746 A.2d 761 (2000).

Despite this special role, not all improper statements by a prosecutor amount to prosecutorial misconduct. "[I]n addressing the jury, [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." (Internal quotation marks omitted.) State v. Andrews, 248 Conn. 1, 19, 726 A.2d 104 (1999). If a prosecutor does exceed these limits, we generally balance the seriousness of the infraction against the difficulties that might arise in a new trial, including "the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of...