State v. Rivera

• Decision Date: 27 November 2000
• Docket Number: No. 18695,18695
• Citation: 61 Conn. App. 763,765 A.2d 1240
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 2001) STATE OF CONNECTICUT v. KATHY RIVERA

765 A.2d 1240 (Conn.App. 2001)

STATE OF CONNECTICUT v. KATHY RIVERA

No. 18695

APPELLATE COURT OF CONNECTICUT

November 27, 2000, Argued

February 13, 2001, Decided.

Richard A. Reeve, for the appellant (defendant).

Robert M. Spector, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Warren Maxwell, senior assistant state's attorney, for the appellee (state).

Before: Foti, Dranginis and Dupont, JJ.

OPINION:

FOTI, J.

The defendant, Kathy Rivera, appeals from the judgment of conviction, rendered after a jury trial, of two counts of conspiracy to commit kidnapping in the first degree in violation of General Statutes 53a-48¹ and 53a-92 (a) (1) (A).² The defendant claims that the prosecutor made certain improper comments during his closing arguments to the jury that deprived her of her constitutional right to a fair trial. We disagree with the defendant's claims and affirm the judgment of the trial court.

From the evidence presented at trial, the jury reasonably could have found the following facts. The defendant and the victim, Quintina Texidor, knew one another in high school and socialized. Sometime after midday on February 25, 1997, the victim, her two year old daughter and the defendant were at the victim's house in Hartford watching television. At the defendant's suggestion, the victim and her daughter accompanied the defendant to her home in West Hartford. The defendant drove them to her house in her Cadillac automobile.

Upon entering the defendant's house, the defendant grabbed the victim's daughter from the victim's arms and took her somewhere upstairs in the house. Two men came into the first floor from the basement of the house. The victim later identified the men, both of Jamaican descent, as "Patrick" and "Dred." Patrick grabbed the victim by the neck and told her that she had something that belonged to him. The men took her to the living room and repeatedly told her that she had a package containing fifteen pounds of marijuana that belonged to them. The victim denied having the package.

At that point, the defendant left the victim's daughter upstairs and came to the living room. The defendant called the victim's boyfriend, Ismael Sanchez, told him that she had his daughter and his girlfriend, and said, "Please tell me you got eight Gs or I'm gonna let them take her to the Bronx and kill her, do whatever they want with her." The defendant's boyfriend, Carmelo Rivera, arrived at the house. He and the defendant argued in Spanish in the kitchen. The victim understood their argument and testified that Carmelo Rivera wanted the defendant to settle the dispute, but that the defendant wanted to proceed with the scheme and handle things her way. At one point, Carmelo Rivera called Sanchez and said, "It's not me. They want the money." The defendant grabbed the telephone from Carmelo Rivera and told Sanchez, "Yo, just get the money. Yo, you got a daughter. I keep telling you they gonna take her. You ain't never gonna see them again."

Patrick and Dred later led the victim into a car outside the defendant's house. The victim's daughter remained, screaming and crying, with Carmelo Rivera at the defendant's house. While Dred pointed a gun at the victim in the backseat of the car, Patrick drove and the defendant rode in the passenger seat of the car. The four individuals traveled around for several hours. The defendant smoked marijuana and laughed while in the car; she acted "like everything was a joke to her."

During the afternoon, the defendant repeatedly spoke with Sanchez by telephone and demanded money from him. Patrick eventually drove to a shopping center in Bloomfield and met with Carmelo Rivera. At that time, the defendant exited the car, got into Carmelo Rivera's car and drove away. Carmelo Rivera informed Patrick that the police were involved and that they should release the victim. The men took the victim to the Hartford train station and threatened to come after her if anything happened to the defendant or to Carmelo Rivera. The victim's daughter already had been returned to the victim's home.

Sanchez had reported the matter to the police shortly after the defendant called him and demanded money. The police first visited the defendant's home to investigate the dispute. The police did not find anyone connected to the incident at the defendant's home. After the victim returned home, she filed a formal written statement that led to the defendant's arrest and prosecution.

On appeal, the defendant claims that several portions of the prosecutor's closing arguments to the jury infringed on her right to a fair trial. Specifically, the defendant claims that the prosecutor improperly (1) attacked the ethics and conduct of defense counsel, (2) relied on evidence that had been admitted only against another defendant who no longer was on trial, (3) vouched for the credibility of the state's key witness, (4) expressed his belief that the defendant had lied during her testimony, (5) urged the jury to draw inferences on the basis of impermissible speculation and prejudicial stereotypes, and (6) suggested to the jury that if it found the defendant not guilty, it would be "violating the law."³

We will address each of the defendant's claims of impropriety in turn and set forth additional facts as they become necessary in the context of her claims.

I

During his rebuttal argument to the jury at the conclusion of the trial, the prosecutor responded to defense counsel's closing argument to the jury. The prosecutor noted that defense counsel's comments concerning the innocence of the defendant or the credibility of witnesses constituted "unprofessional conduct and it so states in the rules of practice."⁴ After the prosecutor concluded his argument, the court dismissed the jury for the weekend. After the jury's departure, defense counsel made an oral motion for a mistrial. Defense counsel's motion rested solely on his objection to the prosecutor's comment that he had violated the Rules of Professional Conduct in his closing argument. Following a brief hearing on the issue, the court denied the defendant's motion, noting that the comment did not "reach the severity level that would require a mistrial . . . ." On the next day of trial, a Monday, the defendant, out of the jury's presence, renewed her motion for a mistrial, reiterating that the prosecutor had directed the comments at defense counsel for the sole purpose of convicting the defendant. The court permitted defense counsel to file a written motion for a mistrial and additional requests to charge the jury that included an instruction concerning the comments the prosecutor made about defense counsel to the jury.

The court again denied the defendant's motion for a mistrial. The court indicated to counsel that it would provide a curative instruction to the jury and discussed with counsel the substance of the court's proposed curative instruction. The court also considered defense counsel's comments regarding its curative instruction. When the jury entered the courtroom, the court instructed it to disregard that portion of the state's rebuttal argument that alleged unprofessional conduct by defense counsel.⁵ At a later point in the charge, the court again instructed the jury that the arguments of the attorneys did not constitute evidence in the trial. At the conclusion of the court's instructions to the jury, defense counsel did not take exception to any of those relevant portions of the court's charge. The defendant now claims that although the court denied her motion for a mistrial, the court's curative instruction did not cure the prejudice the prosecutor's rebuttal argument caused and that the argument deprived her of her right to a fair trial. We will review this claim because the defendant at trial raised the need for a mistrial and adequately preserved for review her claim that the court improperly refused to grant her motion for a mistrial.

"When presenting closing arguments, as in all facets of a criminal trial, the 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. . . . By 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).

"Prosecutorial misconduct may . . . occur in the course of closing argument. . . . Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. . . . State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. (Internal quotation marks omitted.) Id., 539-40." State v. Heredia, 253 Conn. 543, 561, 754 A.2d 114 (2000).

"To determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). State v. Garrett, 42 Conn. App. 507, 515-16, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996). To make this...