State v. Thompson

• Decision Date: 23 April 2002
• Docket Number: (AC 21588)
• Citation: 69 Conn. App. 299,797 A.2d 539
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. RYAN THOMPSON

69 Conn. App. 299

797 A.2d 539

STATE OF CONNECTICUT v. RYAN THOMPSON

(AC 21588)

Appellate Court of Connecticut.

Argued December 6, 2001.

Officially released April 23, 2002.

Schaller, Pellegrino and Flynn, JS. Moira L. Buckley, deputy assistant public defender, for the appellant (defendant).

Joy K. Fausey, deputy assistant state's attorney, with whom, on the brief, were Vincent J. Dooley, senior assistant state's attorney, and Roger Caridad, assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, Ryan Thompson, appeals from the judgment of conviction, rendered after a jury trial, of reckless manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55 (a) (3) and 53a-55a.¹ On appeal, the defendant claims that (1) he was deprived of a fair trial by prosecutorial misconduct, (2) the trial court improperly allowed witnesses to testify as to the credibility of other witnesses, (3) the trial court improperly admitted the written Whelan² statements of two witnesses and (4) the trial court improperly admitted hearsay testimony. We conclude that prosecutorial misconduct in closing argument so infected the trial with unfairness as to make the resulting conviction a denial of due process and a deprivation of the defendant's right to a fair trial. We further conclude that a witness improperly was permitted to testify as to the credibility of another witness. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

The jury reasonably could have found the following facts. On the evening of April 18, 1998, the victim, Robert McCaffery, and his friend, John Jones, attended a party at an apartment in the Moosup section of Plainfield. The two left the apartment at approximately 11 p.m. and climbed onto a nearby garage roof to smoke and to watch an altercation that was taking place in front of the apartment. As the two men were sitting on the roof, Jones heard a "pop." When Jones turned around, McCaffery was lying on his back with blood coming out of the side of his head. McCaffery subsequently died as a result of a gunshot wound. A witness testified to seeing the defendant exit a car just before the shooting, holding what appeared to be a rifle, and run between two houses in the direction of the victim. No eyewitnesses actually saw the defendant shoot the victim.

Two days after the shooting, the defendant was charged with murder in violation of General Statutes § 53a-54a. Following a jury trial, the defendant was found guilty of the lesser included offense of reckless manslaughter in the first degree with a firearm in violation of §§ 53a-55 (a) (3) and 53a-55a. The jury found the defendant not guilty on the charge of murder in violation of § 53a-54a and intentional manslaughter in the first degree in violation of § 53a-55a. He was sentenced to twenty-five years in the custody of the commissioner of correction. This appeal followed.

I

First, the defendant claims that the state engaged in prosecutorial misconduct depriving him of a fair trial in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We agree.

The defendant failed to preserve his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).³ We review the defendant's claim because the record is adequate for review, and his allegation of prosecutorial misconduct in violation of his right to a fair trial is of constitutional magnitude. Furthermore, we conclude that under the circumstances of this case, the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.

Our standard of review of a claim of prosecutorial misconduct is well established. "Our Supreme Court has previously acknowledged that prosecutorial misconduct can occur in the course of closing argument.... It is well settled, however, that a defendant may not prevail under Golding ... unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant's right to a fair trial." (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 656, 783 A.2d 511 (2001). "In determining whether prosecutorial conduct amounts to a denial of due process, we consider whether the conduct was improper, and, if so, we next determine whether the conduct caused substantial prejudice to the defendant.... 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." (Citation omitted; internal quotation marks omitted.) State v. Dillard, 66 Conn. App. 238, 241, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001); see also State v. Whipper, 258 Conn. 229, 262-63, 780 A.2d 53 (2001). In deciding whether the claim of misconduct caused the defendant substantial prejudice, we look to whether it so infected the trial with unfairness so as to make the conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).

Although the defendant identifies several instances of alleged misconduct in support of his claim, we focus our inquiry on the most egregious statements, as they are dispositive of this claim. First, the defendant claims that during closing argument, the prosecutor improperly expressed his personal opinion, appealed to the jury's emotions and impugned the character of witnesses when he referred to three witnesses, Jared Gilkenson, David Stebbins and Brandy Stebbins, friends of the defendant who were in the car with him on the night of the shooting. Both Gilkenson and David Stebbins gave written pretrial statements to the police inculpating the defendant, but at trial both testified that it was not the defendant who shot the victim. In closing argument, the prosecutor stated: "Don't think for one minute that any of these kids is a standup enough guy that he's gonna come in there—in here and take the rap for the other. Just as Gilkenson and Stebbins would give up Ryan to protect themselves, we know Thompson would do the same if the shoe had been on the other foot. Ryan is not gonna risk a lengthy jail term to protect David or Jared. If he was not the shooter and he knew who was, he would have told you that. This is not Camelot, and there is no chivalry here.... These kids will protect themselves first. Then, and only then, will they protect each other. That's what happened in this case. While it was Ryan Thompson's finger that pulled the trigger, without David Stebbins and Jared Gilkenson, Rob McCaffery would be alive today. Had either of those individuals been able to put aside their wounded pride, none of us would be in this courtroom today. Mr. Meisler [the defendant's attorney] says nobody else was arrested but Ryan Thompson. None of these other kids have been arrested. The operative word is `yet.' David Stebbins, Jared Gilkenson and Brandy Stebbins have not yet been arrested. When you read the statements of Jared and David, it is very obvious that they knew exactly what they were saying. Those statements indicate that both Jared and David know that it is not a crime to sit by and watch as Ryan jumped out of the car and shot someone. But all they needed to say was, `Come on, Ryan. Let's go home. The party's over.' The fact that they didn't do so is reprehensible. The fact that they would come into court and lie to protect him is even more reprehensible. If neither one of those kids had the moral fortitude to prevent Rob McCaffery's death, do you honestly believe for one minute that their character would prevent them from coming into court and lying to protect their friend?... On the day following this shooting, Jared Gilkenson and David Stebbins knew that they had taken part in the killing of another human being. When the police confronted them, they truthfully told the police who amongst them was responsible. Today, they have no conscience. In their twisted world, there is much more shame attached to being a snitch than there is in protecting a killer from justice. And [in] their misguided loyalty to their friend, Ryan Thompson, they have reserved a place in hell for themselves." The prosecutor also stated: "It is only natural that David and Jared would feel guilty about ratting out their friend. However, it's not until April 22nd that either one of these individuals begin to change their stories. It's a very sad commentary on the character [of] David Stebbins and Jared Gilkenson that their misguided sense of loyalty would outweigh the apprehension of a killer. It's even sadder to think that the parents would rather see a killer escape justice than to admit to the world or even to themselves that their children had anything to do with this incident."

"While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or even to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.... We have cautioned repeatedly that a prosecutor should avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury's attention from their duty to decide the case on the evidence." (Internal quotation marks omitted.) State v. Dillard, supra, 66 Conn. App. 247.

In the past, we have afforded prosecutors great latitude in "the limits of legitimate argument" and "the zeal of counsel in the heat of argument"; (internal quotation marks omitted) State v. Whipper, supra, 258 Conn. 252; but it cannot go unbridled. While we have recognized that closing arguments "`often have a rough and tumble quality about...