State v. Rowe

• Decision Date: 18 July 2006
• Docket Number: No. 17322.,17322.
• Citation: 279 Conn. 139,900 A.2d 1276
• Parties: STATE of Connecticut v. Shaun ROWE.
• Court: Connecticut Supreme Court

900 A.2d 1276

279 Conn. 139

STATE of Connecticut v. Shaun ROWE.

No. 17322.

Supreme Court of Connecticut.

Argued March 14, 2006.

Decided July 18, 2006.

COPYRIGHT MATERIAL OMITTED

Julia K. Conlin, assistant state's attorney, with whom were Kevin Doyle, assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, for the appellant (state).

Janice N. Wolf, assistant public defender, with whom were Suzanne Zitser, assistant public defender, and, on the brief, Richard Emanuel, New Haven, for the appellee (defendant).

SULLIVAN, C.J., and BORDEN, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

SULLIVAN, C.J.

The defendant, Shaun Rowe, was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), larceny in the second degree in violation of General Statutes § 53a-123(a)(3), carrying a pistol without a permit in violation of General Statutes § 29-35, and having a weapon in a motor vehicle in violation of General Statutes § 29-38. The trial court later found the defendant guilty of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c(a)(1), and enhanced the defendant's sentence for having been found guilty of committing a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The principal issue in this appeal is whether the Appellate Court properly reversed the judgment of conviction on the ground of prosecutorial misconduct. We reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. "At approximately 10:45 p.m. on April 30, 2001, the defendant and Antoine Odum went to the drive through window at the McDonald's restaurant on Whalley Avenue in New Haven. Odum was driving his vehicle, and the defendant was in the passenger seat. While the defendant and Odum were at the drive through window, the victim, Marquise Avery, parked his vehicle in the McDonald's parking lot and entered the restaurant. There were no other cars in the parking lot when the victim arrived. After the defendant and Odum purchased food, they parked their vehicle in the parking spot next to the victim's vehicle. When the victim exited McDonald's, the defendant told the victim to `come here.' The victim responded that he did not know the defendant. The defendant then pointed a handgun at the victim and cocked it. At that point, the victim approached the vehicle and was ordered to give the defendant the chain that he was wearing around his neck and to empty his pockets." State v. Rowe, 85 Conn.App. 563, 565, 858 A.2d 792 (2004).

The defendant appealed to the Appellate Court from the judgment of conviction, claiming that his due process right to a fair trial had been violated by the introduction of misleading consciousness of guilt evidence and by the prosecutor's improper comments. Id., at 564-65, 858 A.2d 792. The Appellate Court agreed and reversed the judgment of the trial court. Id., at 565, 858 A.2d 792. We granted the state's petition for certification limited to the following issue: "Did the Appellate Court properly reverse the defendant's conviction on the ground of prosecutorial misconduct?" State v. Rowe, 272 Conn. 906, 863 A.2d 699 (2004).

On appeal to this court, the state argues that (1) the Appellate Court improperly treated the defendant's unpreserved, unreviewable evidentiary claim regarding consciousness of guilt as a claim of prosecutorial misconduct, (2) even if the Appellate Court properly reviewed the defendant's consciousness of guilt claim, the prosecutor committed no prosecutorial misconduct with respect to this issue, (3) the prosecutor did not improperly comment on the defendant's failure to testify, and (4) even if the Appellate Court correctly determined that the prosecutor acted improperly, the defendant suffered no due process violation. The defendant counters that the Appellate Court properly recharacterized the consciousness of guilt issue as an issue of prosecutorial misconduct stemming from the state's improper use of consciousness of guilt evidence, and properly reversed the defendant's conviction on that ground. The defendant further argues that the state violated his constitutional right to remain silent by commenting during closing arguments on the defendant's failure to testify. In addition, he urges this court to adopt a different standard for evaluating claims of prosecutorial misconduct, under which a finding of prosecutorial misconduct would require reversal of a criminal conviction unless the state could prove that the misconduct was harmless beyond a reasonable doubt. Finally, the defendant argues that this court should invoke its supervisory authority to reverse the defendant's conviction because the prosecutor deliberately engaged in conduct that he knew, or ought to have known, was improper.¹

In its reply brief, the state counters that the prosecutor's remarks in closing argument were not improper and did not violate the defendant's right to due process, and that this court should not adopt a new rule requiring the state to prove that any instance of prosecutorial misconduct is harmless beyond a reasonable doubt. We conclude that the Appellate Court improperly treated the defendant's evidentiary claim concerning consciousness of guilt as a claim of prosecutorial misconduct and that the prosecution did not engage in any improper conduct. Accordingly, we reverse the judgment of the Appellate Court.

I

We first address the state's claim that the Appellate Court improperly concluded that the prosecutor engaged in misconduct by arguing that the jury could infer consciousness of guilt from testimony pertaining to the defendant's flight because the defendant's claim properly should have been characterized as an unpreserved and unreviewable evidentiary claim, not a claim of prosecutorial misconduct. We agree.

The Appellate Court set forth the following additional facts and procedural history in its opinion. "During its case, the state called Odum [as a witness. Odum] had pleaded guilty to [robbery in connection with the April 30, 2001 incident] and was awaiting sentencing. Before the jury, the prosecutor first established that Odum knew the defendant. He then asked what Odum did with the defendant, and Odum testified that he sold drugs with him. Odum then testified that he was present in his vehicle on April 30, 2001, when the defendant robbed the victim at gunpoint. Odum also testified that he was driving that car on May 13, 2001, when he and the defendant, along with another individual, fled from the police.

"Prior to calling Odum, the prosecutor informed the court that he had instructed Odum that `we weren't going to bring out on direct anything related to the arrest on May 13, 2001, when [Odum] was with this defendant, about the defendant having narcotics because that's not an issue before the court.' The prosecutor then added, `if it's brought up on cross-examination, then I may follow up on it.'

"Before Odum's examination had begun, the state gave defense counsel a copy of Odum's statement to the police, which was marked for identification. In Odum's statement to the police, Odum stated that he fled from the police on May 13, 2001, because he was on probation, and the defendant, also on probation, was in possession of drugs.

"The state later called Officer David Rivera of the New Haven police department. Rivera testified that he was on patrol on the evening of May 13, 2001.... While examining Rivera, the prosecutor showed him a copy of his police report, which was not marked as an exhibit. The defendant objected to [Rivera's] testimony [for lack of foundation], arguing that there was no evidence regarding an incident occurring on May 13, 2001. The court overruled the defendant's objection....

"Rivera then testified that he was on patrol on May 13, 2001, with two other officers. At approximately 11 p.m., Rivera observed a vehicle fail to obey a traffic signal. [When the officers pulled over the vehicle and approached it on foot] the vehicle sped off.... After traveling a short distance, the vehicle stopped, and the three individuals inside exited and ran in different directions.

"Rivera also testified that the officers pursued the individuals on foot. After chasing the driver for approximately two blocks, Rivera apprehended the defendant.... Odum was also in the vehicle, along with another individual. In his incident report, Rivera wrote that while chasing the defendant on foot, he observed the defendant throw a small bag to the ground. After the defendant was apprehended, Rivera retrieved the bag, in which were twenty-nine smaller bags containing a white rock-like substance that field tested as crack cocaine....

"At the close of the evidence, the state filed a request to charge, and the court instructed the jury as to consciousness of guilt on the basis of the defendant's flight on May 13, 2001. In closing argument, the defendant argued that the robbery never occurred and that the victim ... was lying. He also pointed out that Odum, who had pleaded guilty to involvement in the robbery, hoped for leniency and probation because of his testimony.

"During closing argument and again during rebuttal argument, the prosecutor commented on the defendant's consciousness of guilt in relation to Rivera's testimony.² In its charge to the jury, the court instructed the jury on consciousness of guilt.³ During its deliberation, the jury asked to have Rivera's testimony read back before returning a guilty verdict." State v. Rowe, supra, 85 Conn.App. at 566-69, 858 A.2d 792.

On appeal to the Appellate Court, "[t]he defendant claim[ed] ... that the consciousness of guilt evidence was misleading and that the prosecutor's comments exacerbated its prejudice." Id., at 569, 858 A.2d 792. He argued that, if the Appellate Court were to find that the claim was unpreserved, it was reviewable under State v....