State v. Serrano

• Decision Date: 06 September 2005
• Docket Number: (AC 24328).
• Citation: 91 Conn. App. 227,880 A.2d 183
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. RICHARD SERRANO.

91 Conn. App. 227

880 A.2d 183

STATE OF CONNECTICUT v. RICHARD SERRANO.

(AC 24328).

Appellate Court of Connecticut.

Argued May 31, 2005.

Officially released September 6, 2005.

Lavery, C. J., and Dranginis and McLachlan, Js.

Raymond L. Durelli, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael A. Colombo, Jr., former deputy assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Richard Serrano, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit burglary in the second degree in violation of General Statutes §§ 53a-49 (a) (2)¹ and 53a-102.² On appeal, the defendant claims that (1) he was deprived of a fair trial due to prosecutorial misconduct, (2) there was insufficient evidence to prove his guilt beyond a reasonable doubt and (3) the trial court failed to instruct the jury properly. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of November 2, 2001, the victim, Ana Yepes-Sanabria, was alone in her third floor apartment when she heard someone knocking on her door. The knocking continued for fifteen to twenty minutes. During that time, Sanabria neither answered the door nor responded orally to the knocking. Only after she saw the doorknob being turned back and forth did Sanabria call the police. While she was on the telephone with the police, Sanabria saw a fork come past the door lock striker. Although there was some uncertainty as to whether she opened the door or if the door opened because of the inserted fork, it is undisputed that the door opened one to two feet and that Sanabria saw the defendant standing outside the door with a fork in his hand at the locking mechanism.³ At that point, the defendant claimed to be at the wrong apartment, covered his face and ran down the stairs. Sanabria then walked into the hallway to look out a window and saw the defendant exit the front door of the building and run to the rear of the building.

During that time, Sanabria's neighbor, Rudy Flores, who was in the second floor hallway, saw the defendant run down the stairs. When police officers arrived shortly thereafter, Sanabria described the events that had taken place but did not go to the police station at that time or view any photographs of suspects. Flores, however, went to the police station and identified the defendant from an array of photographs as the individual whom he saw run down the stairs. On March 18, 2002, while Sanabria was at the police station to inquire about two previous burglaries of her apartment, she agreed to view an array of photographs of suspects relating to the most recent incident. It was at that time that Sanabria identified the defendant as the individual who was standing outside her apartment with the fork on the night of the incident.

At trial, both Sanabria and Flores again identified the defendant as the individual who was outside Sanabria's door and later seen running down the stairs of the apartment building. The defendant did not testify or call any witnesses but conceded that he was in the apartment building on the night of the incident. The jury found the defendant guilty of attempt to commit burglary in the second degree. Following the verdict, the defendant filed a motion for a judgment of acquittal, which was denied. In a subsequent trial to the court, the defendant also was convicted of being a persistent serious felony offender; General Statutes § 53a-40 (c); and was sentenced to a total effective term of thirteen years in prison and five years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant's first claim on appeal is that his due process right to a fair trial was violated as a result of several instances of prosecutorial misconduct. As the defendant did not object to the majority of those instances, he seeks review of the unpreserved claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree that the prosecutor engaged in two instances of misconduct. We conclude, however, that the misconduct was not so severe as to deprive the defendant of a fair trial.

Unpreserved claims of prosecutorial misconduct must be reviewed by applying the factors set out in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987) and, therefore, Golding review is unnecessary. State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). "[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., 572.

If we determine that prosecutorial misconduct has occurred, we must then apply the following six factors set out in State v. Williams, supra, 204 Conn. 540, to determine whether the misconduct was so severe as to amount to a denial of due process. See State v. Stevenson, supra, 269 Conn. 573. The Williams factors are "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 strength of the state's case." (Internal quotation marks omitted.) Id.

A

The defendant's claims of prosecutorial misconduct fall into three categories of proscribed conduct: (1) improper appeal to the emotions and fears of the jury; (2) improper expression of the prosecutor's personal opinion; and (3) improper introduction of facts that were not in evidence. Although the defendant also claims that the prosecutor committed misconduct by asking leading questions during direct examination, we decline to treat an evidentiary claim as a distinct category of prosecutorial misconduct.⁴ We therefore review each category of claimed misconduct in turn to determine whether, in fact, the prosecutor committed mis-conduct.

The defendant claims that the prosecutor appealed to the emotions and fears of the jurors during closing argument when he asked the jurors to put themselves in Sanabria's position when she heard the knocking on her door.⁵ We agree.

It is well settled that "[a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors.. . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state's case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom." (Internal quotation marks omitted.) State v. David P., 70 Conn. App. 462, 475, 800 A.2d 541, cert. denied, 262 Conn. 907, 810 A.2d 275 (2002). Nevertheless, "[w]hen making closing arguments to 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. John L., 85 Conn. App. 291, 296, 856 A.2d 1032, cert. denied, 272 Conn. 903, 863 A.2d 695 (2004).

The prosecutor implored the jurors to consider the evidence and to use their common sense and experience when assessing the credibility of the witness. Nevertheless, we agree with the defendant that in doing so, the prosecutor improperly asked the jurors to interject their emotions into the deliberation process.

The defendant claims that the prosecutor improperly expressed his personal opinion throughout the course of the trial regarding (1) the credibility of the state's two key witnesses, (2) the proper verdict, (3) defense counsel's representation of the defendant and (4) the state's burden of proof. We will review in turn each claimed instance of improper expression of the prosecutor's personal opinion.

a

The defendant claims that the prosecutor improperly expressed his personal opinion regarding the credibility of the state's two key witnesses during closing arguments when he suggested that conflicting statements by those witnesses concerned only "small details" and should not impact the jury's assessment of the witnesses' credibility.⁶ We disagree.

"As a general rule, prosecutors should not express their personal opinions about the guilt of the defendant, credibility of witnesses or evidence." State v. Holliday, 85 Conn. App. 242, 261, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004). A prosecutor, however, is permitted "to argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses. . . . It is not improper for a prosecutor to comment on the credibility of a witness as long as he neither personally guarantees the witness' credibility nor implies that he has knowledge of the witness' credibility outside the record." (Internal quotation marks omitted.) State v. Sargent, 87 Conn. App. 24, 36, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005).

At trial, there were minor discrepancies in the testimony given by the two key witnesses. The prosecutor merely was marshaling the evidence for the jury to consider when assessing the credibility of the...