author: LAVERY, J. FOTI, J.,

text:
    STATE OF CONNECTICUT v. ANDREW ALEXANDER
    (AC 15584)
    Foti, Lavery and Spear, Js.

      Argued March 16
    officially released September 1, 1998

      Monte P. Radler, senior assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Nancy Dolinsky, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Andrew Alexander, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the state’s closing argument (1) impermissibly infringed on his constitutional right to be present during trial and (2) amounted to prosecutorial misconduct depriving the defendant of a fair trial. In addition, the defendant claims that the trial court improperly ruled that one of the defendant’s witnesses failed to qualify as an expert, permitted the state’s expert witness to vouch for the truthfulness of the victim, prevented the defendant from introducing extrinsic evidence regarding the victim’s credibility and imposed sex offender treatment as a special condition of probation in this case. We agree with the defendant that the state’s closing argument violated his constitutional right to be present during trial and to a fair trial, and we do not address the remaining claims.

The jury reasonably could have found the following facts. At the time of trial, the victim, C, was twelve years old and in the seventh grade. The victim lived in Stamford with her mother, Kendra, a younger brother and twin sisters. The victim was in the second or third grade when she first met the defendant. The defendant was Kendra’s boyfriend and the father of the victim’s twin sisters. The defendant met Kendra in the fall of 1989. Kendra became pregnant by the defendant in the summer of 1990, and they agreed that the defendant would become involved as a father to their offspring. Because of his work schedule, the defendant maintained a residence in New York City. He resided with Kendra primarily on weekends after she became pregnant.

At first, the victim liked the defendant. He was nice to her, took her to a park, gave her money for ice cream and never punished or hit her. About the time the victim was eight, the defendant began to abuse her sexually. He would enter her bedroom at night when the room was dark and, if she was asleep, would touch her to awaken her. The defendant would get into her bed, take off her panties and put his finger into her vagina, which hurt, and felt like a knife cutting into her. When C would tell the defendant to stop, he complied. He would also push up her nightshirt and touch her chest as well.

In February, 1993, during school vacation when C was nine, she went to Massachusetts to visit her paternal grandmother. When her grandmother asked how the defendant was treating her, C said that the defendant did not treat her right and disclosed the abuse to her, saying that it had gone on since she was about eight. On her way back to Stamford, C told her father of the abuse.

On March 2, 1993, C was interviewed by Patricia Nelson of the Stamford Child Guidance Center. An audiotape was made of the interview and played for the jury. In the interview, C stated that the abuse began when she was eight, toward the end of the year. She said that the defendant had rubbed her vaginal area, but she was afraid that the defendant would be angry if she provided more detail and she did not want to get him in trouble. At trial, C explained that her testimony was different from her audiotape interview because “now that you get a chance to think about what happened, it all comes back to you. Most of it does.” The victim also spoke about the abuse with Marie Williams, a social worker at the department of children and families (department).

At trial, the state called the victim’s father, Officer Martin Treadway of the Stamford police department, Nelson, Williams, and the victim’s grandmother primarily as constancy of accusation witnesses. The state also called Nelson, Williams, and Stephen Spitz, a psychologist and consultant for the department, as expert witnesses. The defendant testified and denied ever abusing the victim. In addition, the defendant elicited character testimony from ten witnesses.

The jury returned a verdict of guilty on both counts. The trial court imposed a total effective sentence of five years, suspended after one year, with five years probation and special conditions. The court denied the defendant’s motion to open the judgment and motion to correct sentence. This appeal followed.

The defendant claims that during the state’s closing argument the state’s attorney impermissibly infringed on his constitutional right to be present during trial and that the closing argument amounted to prosecutorial misconduct depriving him of a fair trial. We will address each of these claims individually and, because we find them dispositive, we will not address the defendant’s remaining four claims as it is not likely that they will arise during the new trial. The sentencing claim could arise only in the event of a conviction, and we do not know what the outcome of the new trial will be.

“It is well recognized that the state’s attorney ‘is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment. If the accused be guilty, he should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe. 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 to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.’ State v. Ferrone, 96 Conn. 160, 168-69, 113 A. 452 (1921).” (Emphasis added.) State v. Satchwell, 244 Conn. 547, 577, 710 A.2d 1348 (1998) (Katz, J., concurring).

I

The defendant’s first claim arising from the state’s closing argument and rebuttal argument concerns comments made by the state’s attorney about the defendant’s presence in the courtroom throughout the trial. Specifically, the defendant claims that the comments made by the state’s attorney impermissibly infringed on his constitutional right to be present at trial.

In the state’s closing argument to the jury, the prosecutor stated: “Who is best able to fabricate a complicated stoiy designed to sway a jury? Your final decision must ultimately be based on whom you believe, the victim ... or the defendant, Andrew Alexander. . . . Now, you may recall that all the witnesses were sequestered. And, that was so they couldn’t hear what the other witnesses were saying so they couldn’t tailor their testimony to each other’s testimony. So that they couldn’t contradict each other. But there was one witness who wasn’t sequestered. There was one witness who heard everything. And, that was [the defendant], who has a built-in bias in the outcome of this case by virtue of the fact that he’s the defendant.” (Emphasis added.) In the state’s rebuttal argument to the defendant’s closing argument, the prosecutor stated: “When you consider the credibility of the defendant’s testimony, keep in mind that of all the witnesses here, he’s the most obviously biased and interested one. He’s the one who has the motive to distort the truth and fabricate the story. Think about it.” (Emphasis added.)

The defendant did not object to the prosecutor’s remarks during the prosecutor’s closing argument or rebuttal argument, but did object to the prosecutor’s rebuttal argument after its conclusion and outside the presence of the jury. The defendant did not make the specific objection, however, that he raises on appeal. Thus, the defendant seeks review of this unpreserved claim under the doctrine articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” (Internal quotation marks omitted.) State v. Santos, 41 Conn. App. 361, 364, 675 A.2d 930, cert. denied, 237 Conn. 932, 677 A.2d 1374 (1996). The defendant’s claim is reviewable because the record is adequate for review, and the claim implicates the defendant’s fundamental constitutional right to be present during his trial.

“It is well settled that a violation of constitutional magnitude may be established even though there has not been a complete abridgement or deprivation of the right. A constitutional violation may result, therefore, when a constitutional right has been impermissibly burdened or impaired by virtue of state action that unnecessarily chills or penalizes the free exercise of the right.

. . . Thus, [w]hatever might be said of [the state’s] objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. . . . The question is not whether the chilling effect is incidental rather than intentional; the question is whether that effect is unnecessary and therefore excessive. United States v. Jackson, [390 U.S. 570, 582, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968)].” (Citations omitted; internal quotation marks omitted.) State v. Cassidy, 236 Conn. 112, 126-27, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996).

In State v. Cassidy, supra, 236 Conn. 112, our Supreme Court held that a defendant’s constitutional right to be present throughout his trial was violated by the prosecutor’s closing argument. The court stated that “[i]nviting the fact finder to draw an inference adverse to a defendant solely on account of the defendant’s assertion of a constitutional right impermissibly burdens the free exercise of that right and, therefore, may not be tolerated. ... In arguing to the jury that the defendant had been able to ‘doctor up’ his testimony simply because, in contrast to the state’s witnesses, the defendant had been present during the entire trial, the prosecutor invited the jury to draw an inference adverse to the defendant solely because of the defendant’s exercise of his constitutional right to confront the witnesses against him.” (Citations omitted.) Id., 127-28.

“The Cassidy court also acknowledged the fact that, in choosing to testify, the defendant put his credibility at issue, thereby subjecting himself to critical cross-examination. Accordingly, the court noted that the prosecutor would have been free to challenge the defendant’s version of the facts and to argue that the defendant had tailored his testimony to fit the state’s case, provided that such an argument was ‘linked solely to the evidence and not, either directly or indirectly, to the defendant’s presence at trial [i.e., his exercise of a constitutional right].’ State v. Cassidy, supra, 236 Conn. 128 n.17.” (Emphasis added.) State v. Shinn, 47 Conn. App. 401, 413, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).

The United States Court of Appeals for the Second Circuit also recently addressed this same issue in Agard v. Portuondo, 117 F.3d 696 (2d Cir. 1997). In Agard, the court held that “it is constitutional error for a prosecutor to insinuate to the jury for the first time during summation that the defendant’s presence in the courtroom at trial provided him with a unique opportunity to tailor his testimony to match the evidence. Such comments violate a criminal defendant’s right to confrontation, his right to testify on his own behalf, and his right to receive due process and a fair trial.” Id., 709. “We therefore hold that the Sixth Amendment right to confrontation prohibits a prosecutor from commenting in summation that a defendant’s testimony may be viewed in light of his presence in the courtroom during trial, because such comments violate the defendant’s right to be present at trial.” Id., 710.

In State v. Shinn, supra, 47 Conn. App. 401, this court addressed a similar claim involving the state’s closing argument. The defendant’s unpreserved claim in Shinn was that “the state’s closing argument to the jury imper-missibly burdened his constitutional right to testify in his own behalf.” Id., 408. This court held that “[t]he prosecutor in this case, as a consequence of his remarks, invited the jury to draw an adverse inference from the very fact of the defendant’s decision to exercise his fundamental right to testify in his own behalf. The remarks were not objectionable because they addressed the content or credibility of the testimony, but because, as was true in Cassidy, the comments directly implicated an important constitutional right of the defendant.” Id., 414.

We conclude that the principles established in Cas-sidy and followed in Shinn, as well as those enunciated in Agard, apply to this case. In this case, the prosecutor argued to the jury that by exercising his constitutional right to be present during trial, the defendant tailored his testimony in response to the testimony that he heard. The prosecutor’s statements invited the jury to draw an adverse inference on the defendant’s constitutional right to be present during trial.

Although the prosecutor was free to challenge the defendant’s version of the facts and even to argue that he had tailored his testimony to fit the state’s case, the prosecutor was not permitted to link this argument, either directly or indirectly, to the defendant’s presence at trial. State v. Cassidy, supra, 236 Conn. 128 n.17; State v. Shinn, supra, 47 Conn App. 413. The prosecutor’s statement made this impermissible link with the defendant’s presence at trial. If the prosecutor had linked this argument solely to the evidence, her argument would not have been objectionable. “Such argument exceeded the bounds of fair comment because it unfairly penalized the defendant for asserting his constitutionally protected right to confront his accusers at trial.” State v. Cassidy, supra, 128-29.

Because the prosecutor’s statements in this case linked the defendant’s presence at trial with his guilt, the constitutional violation in this case is of the same magnitude as that in Cassidy, Shinn and Agard. We agree with the Second Circuit decision in Agard, in which that court concluded that “a prosecutor’s summation remarks noting the defendant’s unique opportunity to be present at trial infringe upon that constitutionally guaranteed right. The remarks invite the jury to consider the defendant’s exercise of his right to confrontation as evidence of guilt, and therefore penalize him for exercising that right. The comments, which imply that a truthful defendant would have stayed out of the courtroom before testifying or would have testified before other evidence was presented, force defendants either to forgo the right to be present at trial, forgo their Fifth Amendment right to testify on their own behalf, or risk the jury’s suspicion. The Sixth Amendment does not permit those comments.” Agard v. Por-tuondo, supra, 117 F.3d 709.

Having determined that the prosecutor’s closing remarks were improper, the fourth prong of Golding requires us to consider whether the state has proved beyond a reasonable doubt that the violation was harmless. “Because the prosecutor’s argument impermissi-bly infringed upon [the defendant’s] rights guaranteed under the confrontation clauses of the federal and state constitutions, he is entitled to a new trial on those counts unless the state can establish that the objectionable comments were harmless beyond a reasonable doubt.” State v. Cassidy, supra, 236 Conn. 129. We conclude that the state has failed to meet its burden.

In Cassidy, our Supreme Court concluded that “[b jecause the defendant and the victim were the only witnesses with firsthand knowledge of the pertinent events, the state’s case against the defendant rested solely upon the testimony of the victim, which was, in all material respects, uncorroborated. Similarly, the defendant’s affirmative contention that he had not engaged in any of the criminal misconduct alleged by the state was based entirely upon his own testimony. The jury’s principal task, therefore, was to determine which of these two witnesses to believe, making their credibility decisive to the outcome of the case.” Id., 129-30. In Shinn, “the defendant and the victim . . . were the only witnesses with firsthand knowledge of the events pertinent to the attempted murder charge. The critical question to be resolved by the jury, therefore, was which of the two eyewitnesses was telling the truth.” State v. Shinn, supra, 47 Conn. App. 417.

The situation in this case is almost identical to the situations described in Cassidy and Shinn. The state’s case rested entirely on the testimony of the victim and the testimony of constancy of accusation witnesses. There was no physical evidence linking the defendant to the alleged abuse. In addition, the jury’s principal task was to determine whether to believe the victim or the defendant. Thus, their credibility was crucial to the outcome.

We conclude that because (1) the state’s case rested on the uncorroborated testimony of the victim, (2) the relative credibility of the victim and the defendant was critical to the jury’s determination of the case, (3) there was no physical evidence of the crimes to assist the jury in that determination and (4) the prosecutor’s remarks struck at the heart of the critical issue in a closely contested case, we are not persuaded beyond a reasonable doubt that the jury was not influenced adversely by the prosecutor’s improper closing argument. The state has failed to prove that the remarks were harmless beyond a reasonable doubt and, accordingly, the defendant is entitled to a new trial on the fourth degree sexual assault and risk of injury charges.

II

The defendant next claims that the state’s attorney committed prosecutorial misconduct during her closing and rebuttal arguments, depriving the defendant of a fair trial. Specifically, the defendant claims that in addition to the prosecutor’s comments concerning his presence in the courtroom during trial, the prosecutor also impermissibly expressed to the jury her personal opinion, invited the jury to draw inferences from facts not in evidence, and appealed to the passion and emotions of the jury.

During the state’s closing argument, the defendant objected to the prosecutor’s comments concerning the defendant’s continuing to live with the victim’s mother and the victim’s living in Massachusetts with her grandmother. The trial court instructed the prosecutor to eliminate from her argument any reference to the living arrangements of the defendant or the victim. After the state’s rebuttal argument, the defendant objected. The defendant’s requests for a mistrial, a curative instruction to the jury and an opportunity to rebut parts of the state’s additional argument were denied. The defendant also moved for a new trial, arguing that the prosecutor committed prosecutorial misconduct in her closing argument. The trial court denied the defendant’s motion.

Prosecutorial misconduct may occur during closing argument. State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). “In analyzing the defendant’s claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . 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.” (Citations omitted; internal quotation marks omitted.) Id., 539-40.

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 164, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra, 1181; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra, 654; and the strength of the state’s case. See United States v. Modica, supra, 1181; State v. Couture, supra, 564; see also State v. Glenn, 194 Conn. 483, 492, 481 A.2d 741 (1984).” (Citation omitted; internal quotation marks omitted.) State v. Satchwell, supra, 244 Conn. 578-79 (Katz, J., concurring).

“The prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses. ... Nor may he express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor. . . . The jury is aware that he has prepared and presented the case and consequently, may have access to matters not in evidence . . . which the jury may infer to have precipitated the personal opinions.” (Citations omitted.) State v. Williams, supra, 204 Conn. 541-44. “Similarly, counsel may not submit to a jury that a witness has testified truthfully. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). A prosecutor’s voucher for the credibility of his witnesses is dangerous primarily because the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence. United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).” (Internal quotation marks omitted.) State v. Williams, 41 Conn. App. 180, 183, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).

“A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts which have not been proven amount to unsworn testimony that is not the subject of proper closing argument.” (Citations omitted.) State v. Williams, supra, 204 Conn. 544; see also State v. Williams, supra, 41 Conn. App. 185.

“A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . We have stated that such appeals should be avoided because they have the effect of diverting the juiy’s attention from their duty to decide the case on the evidence. . . . An appeal to emotions may arise directly, or indirectly from the use of personal and degrading epithets to describe the defendant. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 204 Conn. 545-46.

In this case, the prosecutor rendered her opinion, both directly and indirectly, on more than one occasion, on the credibility of the victim’s testimony. These personal expressions of opinion, examined in the context of the trial as a whole and in particular in light of the state’s closing argument, demonstrate an improper vouching of the state’s most important witness, the victim. Further, as previously stated, the critical issue of this case involved the credibility of the defendant and the victim.

The prosecutor also made reference to facts not in evidence.* ***** In addition, the prosecutor appealed to the emotions of the jurors. We agree with the defendant that these statements invited the jury to ignore the facts of the case and were so pervasive throughout the state’s summation that they infected the fairness of the entire trial.

In determining whether the prosecutor’s misconduct rises to a level amounting to a denial of due process, we focus on the factors enunciated in State v. Williams, supra, 204 Conn. 540. In this case, we do not believe that the misconduct was invited by any conduct or argument of the defense. We believe that the seriousness of the misconduct is reinforced by the frequency of its occurrence during the state’s closing argument. The improper comments directly addressed the critical issue in this case, the credibility of the victim and the defendant. There were no curative measures adopted, and the state’s case was not particularly strong in that it rested on the credibility of the victim.

In this case, the state’s closing argument was so thoroughly infected with improper argument that we cannot say with any reasonable degree of certainty that the jury was not improperly influenced by it. Thus, the state has failed to establish that the improper remarks were harmless. The closing argument of the state clearly violated the parameters of “zealous advocacy” and exemplifies the impermissible behavior described in State v. Satchwell, supra, 244 Conn. 577-82 (Katz, J., concurring), that will not be tolerated. We conclude, on the basis of the facts of this case, that the defendant was denied a fair trial in violation of his federal and state constitutional rights to due process of law.

The judgment is reversed and the case is remanded for a new trial.

In this opinion SPEAR, J., concurred.

FOTI, J.,

dissenting. I must respectfully disagree with the majority opinion that the prosecutor (1) impermissi-bly infringed on the defendant’s constitutional right to be present during trial and (2) committed prosecutorial misconduct during her closing and rebuttal arguments, thereby depriving the defendant of a fair trial.

I

I agree that the defendant is entitled to Golding review of his unpreserved constitutional claim that comments made by the prosecutor during her closing and rebuttal arguments impermissibly infringed on his right to be present during trial. I do not agree, however, that a constitutional violation clearly exists and clearly deprived the defendant of a fair trial, or that the state has failed to prove harmlessness beyond a reasonable doubt. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In this case, the defendant claims that the following comments by the prosecutor infringed on his right to be present at trial: “Who is best able to fabricate a complicated story designed to sway a jury? Your final decision must ultimately be based on whom you believe, the victim ... or the defendant .... Now, you may recall that all the witnesses were sequestered. And, that was so they couldn’t hear what the other witnesses were saying so they couldn’t tailor their testimony to each other’s testimony. So that they couldn’t contradict each other. But there was one witness who wasn’t sequestered. There was one witness who heard everything. And, that was [the defendant], who has a built-in bias in the outcome of this case by virtue of the fact that, he’s the defendant. . . . When you consider the credibility of the defendant’s testimony, keep in mind that of all the witnesses here, he’s the most obviously biased and interested one. He’s the one who has the motive to distort the truth and fabricate the story. Think about it.” I do not agree with the majority that these comments “linked the defendant’s presence at trial with his guilt” and amounted to a constitutional violation “of the same magnitude as that in Cassidy, Shinn and Agard.”

In State v. Cassidy, 236 Conn. 112, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), our Supreme Court considered a defendant’s preserved claim that remarks made by the prosecutor during closing rebuttal argument infringed on his rights to be present at trial and to confront the witnesses against him. The court stated that “[i]nviting the fact finder to draw an inference adverse to a defendant solely on account of the defendant’s assertion of a constitutional right impermissibly burdens the free exercise of that right and, therefore, may not be tolerated.” (Emphasis added.) Id., 127.

In Agard v. Portuondo, 117 F.3d 696 (2d Cir. 1997), the United States Court of Appeals for the Second Circuit considered a claim similar to that considered by our Supreme Court in Cassidy. The court concluded that the prosecutor’s summation remarks violated the defendant’s sixth amendment right to confrontation. Id., 712. The court stated that “[l]awyers may not raise innuendo relating to bias or credibility from the shadows of unlitigated facts for the first time in their closing arguments. Such tactics prevent rebuttal and cross-examination, which are the engines of the truth-finding process in an adversarial criminal trial. Without facts in evidence to support an inference of fabrication, such remarks are prejudicial and not at all probative.” (Emphasis added.) Id., 711. The court noted, however, that aprosecutor is “free ... to point out that [a defendant] has motive to lie in order to escape incarceration . . . and to remark upon that motive in summation . . . .’’Id.

In State v. Shinn, 47 Conn. App. 401, 408, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998), we considered a defendant’s unpreserved claim that “the state’s closing argument to the jury impermissibly burdened his constitutional right to testify in his own behalf.” We concluded that the prosecutor’s statements directly linking the defendant’s decision to testify with his guilt were improper and resulted in a denial of the defendant’s due process rights. Id., 414. We emphasized, however, that the case did not involve “a comment of a prosecutor that relates to the credibility of a defendant who takes the stand to testify in his or her own behalf. Rather, [the] case concerned] a comment that relates to the fact that a defendant chose to exercise the constitutional right to testify, not to the content of that testimony.” (Emphasis in original.) Id., 409-10.

In this case, the focus of the prosecutor’s summation to the jury was the relative credibility of the defendant and the victim. In challenging the defendant’s credibility, the prosecutor referred to a multitude of factors, including (1) the defendant’s status as a sophisticated adult who is in a better position than the minor victim to “fabricate a complicated story designed to sway a jury,” (2) the contradictions in the testimony of the defendant and the victim’s mother, (3) the defendant’s demeanor while testifying, (4) the defendant’s statements under oath in a prior court proceeding and (5) the defendant’s interest in the outcome of the case. The prosecutor, therefore, did not invite the jury to draw an inference that the defendant fabricated his trial testimony solely because he exercised his constitutional right to confront the witnesses against him. See State v. Carter, 47 Conn. App. 632, 644, 708 A.2d 213, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998); compare State v. Cassidy, supra, 236 Conn. 127.

In addition, the prosecutor referred to facts in evidence to support an inference that the defendant fabricated his trial testimony—specifically, the contradictions in the testimony of the defendant and the victim’s mother regarding whether the defendant had ever entered the victim’s bedroom, and the defendant’s prior inconsistent statements regarding his address. This type of argument has been approved both by our Supreme Court in Cassidy and by the Second Circuit in Agard.

Finally, the prosecutor’s remarks in this case are unlike those considered by this court in Shinn. Here, all of the remarks challenged by the defendant relate to the credibility of his testimony and do not directly link his presence at trial with his guilt. Compare State v. Shinn, supra, 47 Conn. App. 414.

“It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination. State v. Carter, 189 Conn. 631, 640, 458 A.2d 379 (1983). A defendant cannot both take the stand and be immune from impeachment. . . . An accused who testifies subjects himself to the same rules and tests which could by law be applied to other witnesses. State v. Palozie, 165 Conn. 288, 298, 334 A.2d 468 (1973).” State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986).

The prosecutor’s comments during summation properly challenged the defendant’s credibility by reference to the evidence adduced at trial. Moreover, unlike in Cassidy, the prosecutor’s comments did not invite the jury to draw an inference adverse to the defendant solely on account of the defendant’s assertion of his constitutional right to confront the witnesses against him. I would conclude, therefore, that the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

Even if I were to conclude that the prosecutor’s summation remarks were improper, I would not grant the defendant a new trial because the state has established that the remarks were harmless beyond a reasonable doubt. See State v. Carter, supra, 47 Conn. App. 647.

“In State v. Cassidy, supra, 236 Conn. 131-32, the court based its decision that the prosecutor’s remarks were not harmless on the fact that (1) the state’s case rested entirely on the uncorroborated testimony of the victim, (2) the relative credibility of the defendant and the victim was critical to the jury’s resolution of the case, (3) there was no independent evidence of the crimes to assist the jury in that determination, and (4) the trial court failed to give a curative instruction as requested by the defendant.” State v. Carter, supra, 47 Conn. App. 647-48.

Although the relative credibility of the defendant and the victim was important to the jury’s resolution of the case, the state’s case did not rest entirely on the uncorroborated testimony of the victim. Rather, the state called five constancy of accusation witnesses to support the victim’s testimony. In addition, the state adduced testimony from three expert witnesses. Furthermore, unlike in Cassidy, the defendant did not seek a curative instruction at the conclusion of closing argument. See State v. Oehman, 212 Conn. 325, 338, 562 A.2d 493 (1989) (conclusion that prosecutor’s comments did not result in prejudice to defendant sufficient to warrant reversal of conviction buttressed by defendant’s failure to object to portions of prosecutor’s summation complained of on appeal).

Finally, in Cassidy, the court’s decision “was based, in part, on the fact that the comments by the prosecutor were misleading to the jury because ‘it [was] by no means certain that the jurors were . . . aware of the fact that the other trial witnesses were not permitted in the courtroom when not testifying’ due to the existence of a sequestration order.” State v. Carter, supra, 47 Conn. App. 643. The court stated that “[t]his information . . . would have at least placed the prosecutor’s comments in a fairer, more complete, context.” State v. Cassidy, supra, 236 Conn. 124. In this case, the prosecutor, during summation, clearly and unambiguously stated that, “all the witnesses were sequestered.”

I would conclude that the allegedly improper comments made by the prosecutor were harmless beyond a reasonable doubt.

II

The majority concludes that the defendant was denied a fair trial in violation of his federal and state constitutional rights to due process of law because the prosecutor, during her summation, improperly (1) rendered her opinion on the credibility of the victim’s testimony, (2) made reference to facts not in evidence and (3) appealed to the emotions of the jurors. I disagree.

During her rebuttal argument, the prosecutor commented that the victim has no motive to lie, that she told the truth, and that the jurors “should depend on her word.” In addition, the prosecutor offered her opinion as to the lack of physical evidence in the case and characterized the victims of child sexual abuse as “small, weak, naive, inarticulate and powerless.” Following the state’s rebuttal argument, the defendant requested a mistrial, a curative instruction to the juiy and an opportunity to rebut orally the prosecutor’s statements. The trial court denied the defendant’s requests. The trial court also denied the defendant’s motion for a new trial.

“In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel 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. . . . [W]e must review the comments complained of in the context of the entire trial. . . . State v. Villanueva, 44 Conn. App. 457, 461-62, 689 A.2d 1141 [cert. denied, 240 Conn. 930, 693 A.2d 302] (1997).” (Internal quotation marks omitted.) State v. Abdalaziz, 45 Conn. App. 591, 605, 696 A.2d 1310, cert. granted on other grounds, 243 Conn. 902, 701 A.2d 334 (1997). “We look to the propriety of the challenged remark and, if the statement was improper, to whether it caused substantial prejudice to the defendant. Statev. Oehman, [supra, 212 Conn. 336].” State v. Santiago, 45 Conn. App. 297, 303, 696 A.2d 344, cert. denied, 241 Conn. 927, 697 A.2d 362 (1997).

Because the trial court denied the defendant’s requests for a mistrial, a curative instruction to the jury and an opportunity to rebut orally the prosecutor’s statements, as well as his motion for a new trial, it may be assumed that the trial court did not consider the remarks to rise to the level of “prosecutorial misconduct.” “When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial. State v. Floyd, 10 Conn. App. 361, 364, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987). The trial court’s ruling is entitled to weight because of the vantage point from which it can observe and evaluate the circumstances of the trial. The trial court is in a better position to determine the propriety of the remarks of counsel and whether or not they are harmful. State v. Glenn, 194 Conn. 483, 493, 481 A.2d 741 (1984).” (Internal quotation marks omitted.) State v. Pouncey, 40 Conn. App. 624, 635, 673 A.2d 547 (1996), aff'd, 241 Conn. 802, 699 A.2d 901 (1997). “Moreover, we will not disturb the trial court’s mistrial ruling unless the challenged remarks have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . State v. Castonguay, 218 Conn. 486, 508, 590 A.2d 901 (1991).” (Internal quotation marks omitted.) State v. Pouncey, supra, 634-35.

My review of the record reveals that the alleged misconduct was neither intentional nor flagrant and did not rise to the level of substantial prejudice that justifies reversal. The prosecutor’s comments were relatively brief, confined to rebuttal argument and not part of a pattern of misconduct. Further, the trial court instructed the jury that the arguments and statements of counsel during summation were not evidence and that it was the jurors’ recollection of the evidence that should have weight in their deliberations, rather than what counsel said in final argument.

I would conclude that none of the defendant’s claims of prosecutorial misconduct justifies reversal of the defendant’s conviction. The effect of the prosecutor’s comments cannot be said to have affected the outcome of the trial or to have so infected the trial with unfairness as to make the defendant’s resulting conviction a denial of due process. If the defendant suffered any prejudice it was minimal, and the sanction of reversal is inappropriate.

I would affirm the judgment of the trial court and, therefore, respectfully dissent.

      General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . .

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be ipjured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The prosecutor in Cassidy stated: “ ‘Now also consider, you notice that the witnesses come in and out and there’s no witnesses in court, while the other witnesses are testifying, and that ensures that you’re going to hear just that person’s version of the story. They’re not going to doctor it up to fit the other person’s version of the story. There’s one witness in this case who heard every other witness testify. He heard the whole story before he told you the story. That means when the defendant took the stand, and I would submit to you that during the three days of trial, hearing all of the witnesses, the defendant had ample time to doctor up his version of the story. He just didn’t do a good job of it.’ ” State v. Cassidy, supra, 236 Conn. 121-22.

       In Agard, the defendant was convicted of sodomy and weapons possession, and appealed from the denial of his petition for a writ of habeas corpus. “In her summation, the prosecutor referred to Agard as ‘the one who had an answer for everything’ and stated that ‘[a] lot of what he told you corroborates what the complaining witnesses told you. The only thing that doesn’t is the denials of the crimes. Everything else fits perfectly.’ At the end of summation, she stated: ‘You know, ladies and gentlemen, unlike all the other witnesses . . . the defendant has a benefit and the benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies. [Objection overruled.] That gives you a big advantage, doesn’t it. You get to sit here and think what am I going to say and how am I going to say it? How am I going to fit it into the evidence? He’s a smart man. I never said he was stupid. ... He used everything to his advantage.’ ” Agard v. Portuondo, supra, 117 F.3d 707.

      In Shinn, the prosecutor made the following statement: “ ‘You heard repeated references this afternoon that Mr. Shinn got up and testified. That is his right, if he wants to do that, he has the perfect right to do that. That is up to him. He also has a right not to testify. Obviously, ladies and gentlemen of the jury, he heard evidence during the course of the state’s case that he felt was, is strong, and so convincing to you, that he felt obligated to get up there and testify and give you a story. . . . And if he thought . . . that the state’s evidence was too weak in this case, why did he decide to get up here and testify? That’s for your judgment to consider.’ ” State v. Shinn, supra, 47 Conn. App. 408.

       Examples of the prosecutor’s improper argument are: “You’ve probably all heard the saying, ‘wisdom comes from the mouths of babes.’ Well, there’s a reason for that saying. Just because we have a twelve year' old victim, who was eight at the time the incident occurred, recalling what happened to her when she was eight and nine in front of a room full of strangers, doesn’t mean we can’t depend on her word. Because we should depend on her word.

      “And, why? I’ll tell you why. Common sense tells you that no one— no one would put herself through such an ordeal if nothing happened.” (Emphasis added.)
      “[The victim] knew when she came to court she had to tell the truth. And, that’s what she did." (Emphasis added.)

        “Nor did she exaggerate. Nor did she have any motive to lie.”
      “There’s no motive for her to lie.”
      “[The victim] suffered a lot of negative things after she disclosed. And, if she was lying, she would have changed her story. She would have said, ‘Look, I don’t want to live in Massachusetts with my grandmother. I miss home. I miss my friends. I miss my sisters. I made this whole thing up.’ But, she didn’t do it. She didn’t do it. And, why didn’t she do it? Because she told the truth.” (Emphasis added.)

       Examples of the prosecutor’s improper argument in this regard are: “[A] delay in reporting or inconsistencies has nothing to do with whether or not the victim is lying or telling the truth.”
      “]A]n absence of physical injury indicates nothing.”
      “Remember, [the victim] said, T think it happened in the fall. I was eight.’
      And how does she remember she was eight? ‘Because I didn’t know him when I was seven.’ That’s how little kids think. They can’t make this iip.”(Emphasis added.)
      “[YJou’re supposed to believe that as a result of that comment [the victim] fabricated this whole incident to get back at him. I don’t know of that many eight or nine year olds that are that sophisticated to fabricate a sto'ry involving sexual abuse.” (Emphasis added.)
      “And you might recall that [the victim] did—and you will have the tape— and I, too, hope you will listen to the tape again—initially said that the defendant rubbed her vagina. Well, based on that, you wouldn’t have a physical examination because rubbing doesn’t leave fingerprints. And, you can’t always tell even if you had a physical exam if somebody inserted their finger in her vagina, if there had been penetration. And, I think that your common sense will tell you that, even though we didn’t have somebody on the witness stand telling you that there can be penetration and you don’t have proof of it. Because of the different physical characteristics of an individual.” (Emphasis added.)

       The prosecutor made the following statements: “Child molesters don’t sexually assault their victim in front of witnesses. They wait until they’re alone, isolated. They pick out a vulnerable child, such as an eight year old asleep in her bed.”

        “Think of David and Goliath. That’s another one on one contact where there was disparity of the size and power of the participants. The same disparity is found in almost every child sexual abuse case. . . . The child, the victim, is small, weak, naive, inarticulate and powerless. And, must convince you people that her body has been violated.
      “The defense attacked her with all the weapons they could muster. Words, excuses, alibis, explanations, character witnesses. And, still the truth will triumph because it is the triumph of simplicity over duplicity, of directness over evasion, of naivete over sophistication.”
      “Well, if you think an eight year old child would fantasize about a fifty year old man coming into her room at night and sticking his finger in her vagina, then you have a right to think that way. But, I know that you don’t think that way. Because I know (hat your common sense tells you that eight year old children don’t fantasize about that.”
      “Well, we know that priests, camp counselors, teachers—they all can be child molesters. Because you can’t tell a child molester by the way he looks, or by what he does, or by what other people say about him or her.”

       “At the conclusion of closing arguments, the defendant moved for a mistrial or, in the alternative, for a curative instruction to the jury. [State v. Cassidy, supra, 236 Conn. 122].” State v. Carter, 47 Conn. App. 632, 643, 708 A.2d 213, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998).

       As in Cassidy, Aga/rd involved a preserved constitutional claim. Following the prosecutor’s summation, defense counsel moved for a mistrial stating that “[i]t is improper to malee comments to the jury that [it] should not believe [the defendant] due to his exercise of his constitutional rights to be present at his trial.” (Internal quotation marks omitted.) Agard v. Portuondo, supra, 117 F.3d 707.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES BAKER
    (AC 17227)
    Lavery, Spear and Sullivan, Js.
    Argued April 28
    officially released September 8, 1998

      Alexander H. Schwartz, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper, former assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, James Baker, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 and conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a). On appeal, the defendant claims that the trial court improperly denied his motion to disclose the state’s informant and refused to allow the defendant to produce evidence that a third party committed the crime with which the defendant was charged. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 21,1994, the victim, Amenophis Morris, was shot and killed while standing on the porch of his home on Exchange Street in New Haven. Earlier that day, the defendant had had a confrontation with Jeffrey Dolphin, with whom the defendant sold drugs. The defendant believed Dolphin was responsible for a third party’s loss of certain drugs. After the confrontation, Jermaine Harris, Trent Butler and Terrence Stevenson arrived, and the defendant told them that Dolphin was responsible for losing the drugs. Stevenson and Dolphin went to look for the drugs but were unsuccessful. Thereafter, Dolphin and Stevenson reunited with Harris, Butler and the defendant. Harris pulled a gun on Dolphin and stated, “Why don’t we make this asshole do it?” Stevenson asked Dolphin if he had ever killed anyone, to which Dolphin replied that he had not. Stevenson told Dolphin that there was someone he wanted Dolphin to kill. Then, Stevenson forced Dolphin into the defendant’s car, and all five men drove off. Dolphin heard the name “Amenophis” and heard a reference to money that was owed.

The defendant drove to Exchange Street and parked the car. Harris and Stevenson got out of the car and walked up to the victim, who was standing on his porch. Harris was carrying a gun and was wearing a black army fatigue jacket and a mask. The defendant and Butler got out of the car and stood in front of it. Dolphin heard five to eight shots and observed the victim fall. Thereafter, the men jumped into the car, and Harris said, “I got that bastard.” Eventually, the men let Dolphin out of the car. Before doing so, however, Butler told Dolphin, “I know where your mother and sister live,” and, “They’ve been finding bodies in Bridgeport.”

The victim’s neighbor, Luis Deleon, observed the shooting from his porch across the street. He saw a person wearing a black mask and an army jacket walk toward the victim’s residence, pull out a gun and fire six shots. He saw the victim fall to the ground, and he saw the assailant flee.

I

The defendant claims that the trial court violated his constitutional right to present a defense under the sixth amendment to the United States constitution and violated his right to a fair trial under the fifth amendment to the United States constitution by precluding him from inquiring into the identity of a police informant. The defendant argues that the state is required to disclose the identity of an informant when that information is critical to the defendant’s right to a fair trial. The defendant argues that disclosure of the informant’s identity was necessary to determine the source of exculpatory information. He contends that the trial court’s refusal to permit this inquiry adversely impacted his sixth amendment right to present a defense, namely, that a third party was responsible for the murder. The defendant also argues that the state did not adequately assert its claim of privilege and that consequently, the trial court did not properly weigh the applicable competing interests in its ruling.

The facts relevant to this claim are as follows. During its case-in-chief, the state called as a witness Detective Hilden Wright of the New Haven police department. Duiing cross-examination, the defendant asked Wright if he had received information that someone by the name of “Ra-Ra” Diaz was responsible for killing the victim. The state objected to that question, and a hearing was held outside of the presence of the jury. The defendant stated that Wright’s police report indicated that Wright had received information from an anonymous informant that two individuals known as Ra-Ra Diaz and Jose “Little” Melendez had killed the victim because the victim failed to carry out a murder ordered by the Latin Kings gang. The court sustained the state’s objection on the ground that the question was outside the scope of direct examination. The court informed the defendant that he could call Wright in his case-in-chief if he wanted to pursue this line of inquiry. Rather than subpoena Wright at a later time, however, the defendant requested the court’s permission to present an offer of proof. The defendant asked Wright for the name of the person who had told him that Ra-Ra was responsible for the victim’s death. The state objected on the ground that the defendant was requesting information regarding the informant’s identity. The court sustained the objection. Upon further questioning by the defendant, Wright testified that the informant stated that someone had told him that Ra-Ra killed the victim, but the informant did not tell Wright who had told him. Furthermore, Wright stated that the person who told the informant that Ra-Ra was responsible for the murder had heard it from someone else, whom the informant did not identify. On the basis of that voir dire, the trial court refused to allow the defendant to present evidence that a third party killed the victim.

“ ‘What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.’ ” State v. Richardson, 204 Conn. 654, 657-58, 529 A.2d 1236 (1987), quoting Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957).

“Roviaro established a test for assessing challenges to the applicability of the informant’s privilege. This test involves the balancing of two competing interests: (1) the preservation of the ‘underlying purpose’ of the privilege; and (2) the ‘fundamental requirements of fairness.’ ” State v. Jackson, 239 Conn. 629, 632, 687 A.2d 485 (1997), quoting Roviaro v. United States, supra, 353 U.S. 60. “The fundamental requirements of fairness comprise the defendant’s right to a fair trial, including the right to obtain information relevant and helpful to a defense.” State v. Jackson, supra, 632-33.

“While an informant’s or government’s privilege exists, it must yield where it would interfere with a defendant’s right to a fair trial. ‘Where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.’ ” State v. Richardson, supra, 204 Conn. 658, quoting Rovi-aro v. United States, supra, 353 U.S. 60-61.

“The trial court’s determination to apply the privilege is reviewed for abuse of discretion. . . . [W]e will disturb the trial court’s findings only when those findings are clearly erroneous as where there is no evidence in the record to support such findings.” (Citations omitted.) State v. Jackson, supra, 239 Conn. 634-35.

“Before a court will compel disclosure, the informant typically must be a participant in the alleged crime or an eyewitness thereto.” State v. Lee, 30 Conn. App. 470, 479, 620 A.2d 1303 (1993), aff'd, 229 Conn. 60, 640 A.2d 553 (1994); see also State v. Jackson, supra, 239 Conn. 636-37 (disclosure of informant’s identity essential to defense “where ‘the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence’ ”); State v. West, 178 Conn. 444, 445, 423 A.2d 117 (1979) (no requirement that identity of informer, who was not actual participant in or witness to drug sale, be disclosed); State v. McDaniel, 176 Conn. 131, 134, 405 A.2d 68 (1978) (in absence of information that informant was actual participant in or witness to offense charged, trial court did not improperly deny request for identity).

In State v. McDaniel, supra, 176 Conn. 131, our Supreme Court did not compel disclosure of an informant’s identity where the information supplied by the informant to the police was based on hearsay. In that case, “the informer’s knowledge was limited to what he had heard was about to occur and ... it was that hearsay information which he passed on to the authorities.” Id., 133. The McDaniel court rejected the defendant’s claim that he had an absolute right to disclosure of the identity of an informant because the informant’s testimony may have been relevant to the defense. Id., 134; see also State v. Richardson, supra, 204 Conn. 663 (“[m]ere speculation that the informant’s information will be helpful to the defense is not sufficient to mandate disclosure”); State v. West, supra, 178 Conn. 446 (same).

In the present case, it is undisputed that the informant was not a participant in or a witness to the crime. Wright stated that the information he received from the informant was based on hearsay. Thus, the defendant’s assertion that the informant provided direct evidence of the identity of the shooters that would have been material to the outcome of the trial is meritless. The informant’s information was based on hearsay, which is insufficient to support a conclusion that disclosure of the informant’s identity was essential to the defense.

We find no merit in the defendant’s contention that the trial court did not have before it sufficient facts to render its decision. The defendant’s voir dire of Wright established that the informant’s information was based on hearsay. The defendant’s contention that the testimony of a state’s witness, Alton Williams, that the victim was involved in a dispute with the Latin Kings gang and that Puerto Rican men in a red car were repeatedly driving around the victim’s neighborhood on the day of the shooting was sufficient to demonstrate his need for disclosure of the identity of the informer does not change the nature of the information the informant provided to Wright.

We conclude that the trial court did not abuse its discretion in denying the defendant’s request for disclosure of the identity of the informant, and that the defendant’s rights to a fair trial and to present a defense were not violated thereby.

II

The defendant next claims that the trial court improperly refused to allow him to produce evidence that a third party was responsible for the victim’s death. This argument is linked to the defendant’s first claim because the defendant contends that he was precluded from discovering evidence of third party culpability because he did not have access to the identity of the informant.

As previously noted, the defendant made an offer of proof in which he questioned Wright about whether he had information that the individuals known as Ra-Ra and Little were responsible for killing the victim. In refusing to allow the defendant to question Wright on this point, the court told the defense counsel that “you seem to have already put the cart before the horse and elevated what the officer was told by this person as evidence of third party guilt. All I’ve heard so far is third or fourth hand hearsay from unidentified sources that simply does not establish the kind of third party guilt evidence that is properly admissible in the case.”

The defendant also sought to question Williams on the issue of third party culpability. Williams testified on direct examination by the state that he was standing on the porch with the victim prior to the shooting. As Williams stepped from the porch, he heard gunshots and saw the victim fall. During cross-examination, the defendant asked Williams whether he was aware of the victim’s “having some problems with anybody else.” The state objected, and a hearing was held outside of the presence of the jury. The defendant stated that he wanted to present evidence through Williams that a third party committed the murder. In an offer of proof, Williams testified that at the time of the shooting, the victim told him that he had a “beef’ with a member of the Latin Kangs gang. Williams also testified that on the day of the shooting, he observed several Puerto Rican men driving around the victim’s neighborhood in a red car. After the shooting, he saw the red car parked near the victim’s residence with its ignition on and later saw the police tow the car away. The court refused to allow the defendant to present this evidence. The court stated: “At this point, to the extent that [the defendant] has renewed his offer of proof with respect to third party guilt, clearly . . . there is nothing more than a . . . miasma of speculation that in no way amounts to the kind of direct connection that the case law suggests is required before third party evidence can be introduced in front of the jury. So, to the extent you have renewed your request to pursue that line of inquiry with Mr. Williams, based on what you have offered me today, it is denied.”

“It is well established that a defendant has a right to introduce evidence that another person committed the offense with which the defendant is charged.” State v. Sauris, 227 Conn. 389, 401, 631 A.2d 238 (1993). The defendant must, however, present evidence that directly connects the third party to the crime. Id. “ ‘It is not enough ... to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.’ ” Id., quoting State v. Hernandez, 224 Conn. 196, 202, 618 A.2d 494 (1992).

“The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.” State v. Boles, 223 Conn. 535, 549, 613 A.2d 770 (1992). Relevancy is an evidentiary question, and “[e]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 114, 591 A.2d 1246 (1991). “In determining relevancy, [t]he court must determine whether the proffered evidence is corroborative or coincidental, whether it is probative or tends to obfuscate, and whether it clarifies or obscures. In arriving at its conclusion, the trial court is in the best position to view the evidence in the context of the entire case, and we will not intervene unless there is a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Joyce, 30 Conn. App. 164, 178, 619 A.2d 872 (1993), rev’d on other grounds, 229 Conn. 10, 639 A.2d 1007 (1994).

We conclude that the trial court properly exercised its discretion in determining that the proffered evidence was insufficient to connect a third party to the crime. The evidence presented in the defendant’s offer of proof indicated only that the victim and a member of the Latin Kings gang had a disagreement and that persons who might have been members of that gang were in the victim’s neighborhood on the day of the shooting. While the proffered evidence might provide a basis to suspect that a member of the gang was responsible for the shooting, that evidence is too tenuous to be considered relevant. The defendant’s claim that the proffered evidence “directly points” to a “specific third party as a culprit” is without merit. Evidence regarding the Latin Kings gang and the red car was inadmissible because there was no evidence that directly connected a member of that gang or an occupant of that vehicle to the crime with which the defendant was charged. “Unless that direct connection exists it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” (Internal quotation marks omitted.) State v. Boles, supra, 223 Conn. 549-50.

The defendant’s claim that Wright had relevant information connecting a third party to the crime is equally unavailing. As noted previously, the defendant sought to introduce evidence that two individuals known as Ra-Ra and Little killed the victim. The defendant could not establish a direct connection between those individuals and the crime because the information the informant gave to Wright was based on hearsay.

In State v. Alvarez, 216 Conn. 301, 579 A.2d 515 (1990), the defendant attempted to introduce evidence that a third party was responsible for shooting the victim. The defendant argued that the trial court should have allowed a police officer to testify to a statement made to him by an eyewitness to the shooting incident. In an offer of proof made out of the presence of the jury, the officer testified that the eyewitness told him that he thought he saw a person named Rasheem shoot the victim. Our Supreme Court explained that while this evidence directly connected Rasheem with the crime and, thus, was relevant, it would be admissible only if the evidence “was not excluded by some other rule or principle of law.” Id., 305. The court noted, however, that the police officer’s statement was hearsay that did not fall within any recognized exception to the hearsay rule. Thus, the court held that the trial court did not abuse its discretion in refusing to admit the statement. As in Alvarez, the evidence offered by the defendant in this case, namely that Ra-Ra and Little killed the victim, was based on hearsay and was properly excluded.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       General Statutes § 53a-8 provides in relevant part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The defendant asked the following questions and elicited the following responses during his voir dire of Wright:
      “Q. Well, let me ask you this, detective. How is it that this anonymous source came by way of the information that he related to you?
      “A. Somebody told him.
      “Q. All right. Somebody told him?
      “A. Yes.
      “Q. All right. Was the somebody—do you know who it was who told him?
      “A. No.
      “Q. You don’t. Do you know whether it was Ra-Ra Diaz that told him that?
      “A. No. It wasn’t Ra-Ra Diaz.
      “Q. Do you know whether or not it was Jose Melendez that told him that?
      “A. No. It wasn’t Jose Melendez.
      “Q. How do you know that?
      “A. Because he said it wasn’t those two guys. Somebody else told him that these guys did it.
      “Q. All right. When he said somebody else told him, did he indicate who it was that told him?
      “A. No.
      “Q. Did he indicate how it was that this person came upon this knowledge?
      “A. This person heard.
      “Q. And heard from whom?
      “A. He didn’t say.”

       The defendant asserts that the record does not reveal that the trial court performed the required balancing test under Roviaro v. United States, supra, 353 U.S. 53. Although the record in this case does not reveal the basis of the trial court’s decision, “[w]e do not presume error; the trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary.” State v. Crumpton, 202 Conn, 224, 231, 520 A.2d 226 (1987). The defendant has failed to meet this burden. The defendant could have requested an articulation of the trial court’s decision if he believed that the trial court did not properly balance the parties’ competing interests in sustaining the state’s objection to the defendant’s inquiry regarding the identity of the informant. “ [A] claim of error cannot be predicated on an assumption that the trial court acted erroneously.” (Internal quotation marks omitted.) Id., 232.

       The defendant also argues that state suppressed exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and thereby prevented him from fully exercising his right to present a defense under the fifth amendment. “In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.” (Internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 90, 621 A.2d 728 (1993).
      Prior to trial, the defendant filed a motion for discovery, requesting that the state provide him with exculpatory information. In response, the state provided the defendant with Wright’s police report, which included the information from the informant that Ra-Ra and Little shot the victim. In his brief, the defendant admits that the state did not suppress this exculpatory information. The defendant contends that the state improperly suppressed the identity of the informant, which deprived the defendant of the means by which to investigate the exculpatory information. For those reasons, the defendant was not entitled to disclosure of the identity of the informant. Accordingly, the defendant’s claim of a Brady violation is without merit.


author: ST ’TUVAN, J.

text:
    ELIZABETH K. HIRSCHFELD, EXECUTRIX (ESTATE OF ALVIN J. HIRSCHFELD) v. T. DONALD HIRSCHFELD
    (AC 17144)
    Spear, Sullivan and Kulawiz, Js.

      Argued May 27
    officially released September 8, 1998

      Linda L. Morkan, with whom, on the brief, were Frank F. Coulom, Jr., and Bradford S. Babbitt, for the appellant (defendant).

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellee (plaintiff).
   Opinion

ST ’TUVAN, J.

The defendant, T. Donald Hirschfeld, appeals from the trial court’s judgment ordering him to purchase the interest of the plaintiffs decedent in a partnership pursuant to a contract between the decedent and the defendant. The defendant claims that the trial court improperly (1) enforced the contract in favor of the plaintiff and (2) concluded that only the defendant, rather than the other partners, was obligated to purchase the plaintiffs interest in the partnership. We affirm the judgment of the trial court.

The parties stipulated to the following facts at trial. On January 23, 1969, the defendant and his brother, the decedent Alvin J. Hirschfeld, executed a “Buy and Sell Agreement.” The agreement referred to the brothers as “partners” in the ownership of a Howard Johnson’s motel in Westfield, Massachusetts. The agreement provided in part as follows: (1) under paragraph one, neither partner would transfer his interest in the partnership to another person without the consent of the other partner unless he had first offered to sell his interest to that partner; (2) under paragraph two, each partner would take out life insurance naming the other partner as the beneficiary and (3) under paragraph four, “[u]pon the death of either Partner, the surviving Partner shall purchase and the estate of the decedent shall sell all of the interest of the Partnership now owned or hereafter acquired by the Partner who is the first to die. The purchase price shall be equal to the amount of the insurance. ” The agreement purported to bind “the Partners, their heirs, legal representatives, successors, and assigns . . . .”

On December 12, 1985, the defendant and Alvin executed an amendment to their buy and sell agreement, whereby they agreed to “change, delete parts [of], and amend” the original agreement. Paragraph one was amended to allow the partners to transfer or sell a partnership interest to members of their immediate family. Paragraph four, the primary focus of this appeal, was replaced in its entirety and rewritten to provide that “[u]pon the death of any partner the deceased partner’s interest shall be disposed of as provided for by that partner or as stipulated by law. The value of the partnership, or any portion thereof, shall be determined by bona fide offers to purchase or by appraisal by not less than two appraisers chosen by the largest interest holders or their estate or heir. The purchase price for the entire partnership shall not be less than $700,000.00.” Paragraph six, which originally granted the surviving partner the right to purchase from the deceased partner’s estate any insurance policy that named him as a beneficiary, was deleted in its entirety. Finally, the amended agreement reflected that four additional family members had joined the partnership since 1969, and listed the distribution of the partnership interests among all six partners.

Alvin J. Hirschfeld died on May 2, 1993. At the time of his death, his interest in the partnership was 11.33 percent. Through a residuary clause in his will, his partnership interest passed to his wife, the plaintiff. The plaintiff commenced this action in May, 1995, claiming that the defendant was obligated to purchase her husband’s partnership interest pursuant to the 1985 amended buy and sell agreement. The plaintiff also sought an accounting of her husband’s partnership interest. On February 27, 1997, the parties waived a trial by jury and submitted the issues to the trial court on the basis of certain procedural and factual stipulations. After oral argument, the trial court, having also considered the parties’ written briefs, determined that the defendant was obligated to purchase the plaintiffs interest in the partnership. The trial court found that the value of the plaintiffs share in the partnership was 11.33 percent of $700,000 plus interest and, accordingly, awarded $99,658.96 to the plaintiff. This appeal by the defendant followed.

I

The defendant first claims that the trial court improperly concluded that the amended agreement required him to purchase the plaintiffs partnership interest. We disagree.

The defendant agrees that according to the terms of the 1969 agreement, he would have been required to purchase the plaintiffs partnership interest. He argues, however, that such a buyout was not required under the 1985 amended agreement. Specifically, the defendant asserts that paragraph four of the amended agreement is ambiguous, and the plaintiff failed to prove that the parties intended the mandatory buyout of the deceased partner’s interest in the partnership by the surviving partner.

We begin our analysis of this issue by noting that our review of the trial court’s judgment is plenary. In this case, “the trial court’s determinations were based on a record that consisted solely of a stipulation of facts, written briefs, and oral arguments by counsel. The trial court had no occasion to evaluate the credibility of witnesses or to assess the intent of the parties in light of additional evidence first presented at trial. The record before the trial court was, therefore, identical with the record before this court. In these circumstances, the legal inferences properly to be drawn from the parties’ definitive stipulation of facts raise questions of law rather than of fact. . . . Accordingly, our review of the ruling of the trial court in this case is plenary.” (Citations omitted; internal quotation marks omitted.) SLI International Corp. v. Crystal, 236 Conn. 156, 163-64, 671 A.2d 813 (1996).

We first consider the defendant’s assertion that the 1985 agreement, as amended, is ambiguous. In reviewing this claim, we are guided by well established rules. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Internal quotation marks omitted.) Southeastern Connecticut Regional Resources Recovery Authority v. Dept. of Public Utility Control, 244 Conn. 280, 291, 709 A.2d 549 (1998), quoting Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 686, 697 A.2d 1137 (1997).

In the present case, we agree with the defendant that the 1985 amendment to the 1969 buy and sell agreement is ambiguous. As originally written in the 1969 agreement, paragraph four clearly stated that “[u]pon the death of either Partner, the surviving Partner shall purchase and the estate of the decedent shall sell all of the interest of the Partnership now owned or hereafter acquired by the Partner who is the first to die.” (Emphasis added.) The 1985 amendments to paragraph four, however, deleted the unequivocal “shall buy” and “shall sell” language, but did not declare that the buyout obligation was revoked. We determine, therefore, that the 1985 amendment rendered the buy and sell agreement ambiguous. Nevertheless, we conclude that the parties intended the buyout provision to survive the 1985 amended agreement.

Although the “shall purchase” and “shall sell” language was deleted in 1985, the text added to paragraph four was clearly relevant to a buyout requirement. Specifically, the amended version of paragraph four provides that the deceased partner’s interest shall be disposed of as provided for by that partner or as stipulated by law. The paragraph further states that the purchase price for the entire partnership shall be no less than $700,000. In construing the meaning of these clauses, we are mindful that they are contained in an amendment to (not a revocation of) a buy and sell agreement. Thus, we construe the amendments to paragraph four as primarily altering the mechanism by which a buyout would be funded. Whereas the original agreement provided that a buyout would be funded with the proceeds from insurance policies, the amended agreement deleted the requirement that each partner maintain insurance on himself. Since the purchase price of the deceased partner’s interest was no longer to be determined by the value of his insurance policies, however, the amendments to paragraph four provided a new method of valuing the partnership for buyout purposes.

In addition, General Statutes § 34-69 generally provides that the death of any partner dissolves a partnership. Our Uniform Partnership Act, General Statutes § 34-39 et seq., further provides that “[w]hen any partner retires or dies, and the business is continued . . . without any settlement of accounts as between him or his estate and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such persons or partnership may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest . . . .’’(Emphasis added.) General Statutes § 34-80. In the present case, there was no explicit language in the 1969 or 1985 documents indicating that the partners intended the partnership to continue after the death of one of the partners. See Gaess v. Gaess, 132 Conn. 96, 100, 42 A.2d 796 (1945). Considering all of the circumstances surrounding the transaction, therefore, we conclude that it was the intent of the parties that upon the death of either the defendant or his brother, the partnership would dissolve and, in compliance with § 34-80, the surviving partner be required to purchase the deceased partner’s interest in the partnership.

II

The defendant’s second claim is that the trial court improperly determined that only he, without contribution from the other four partners, was obliged to purchase the plaintiffs interest in the partnership. We disagree.

We note that the amended buy and sell agreement allotted shares of the partnership interest to these four individuals and distinguished them from the “original partners” in paragraph one of that document. Even if we assume that they are partners, however, we agree with the trial court’s determination that only the defendant is obligated to purchase the plaintiffs interest in the partnership.

It is a basic tenet of partnership law that when carrying on the partnership business, a partner has the authority to bind the entire partnership. General Statutes § 34-47; see also McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 521, 590 A.2d 438 (1991). The execution of the amended buy and sell agreement, however, did not relate to the carrying on of the partnership business. The agreement, therefore, is governed by the principles of contract law, which provide that “[a] contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties.” (Internal quotation marks omitted.) Pavliscak v. Bridgeport Hospital, 48 Conn. App. 580, 596, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998). The mere fact that the defendant believed that the other four partners were bound by the amended buy and sell agreement, without any evidence that they intended to be bound by it, does not bind them to the agreement. See id. Here, the amended agreement states that it was executed during a meeting at which only the defendant and his brother were present. Theirs are the only signatures on the document. There is no evidence that the other four partners assented to its terms or were even aware of its existence. Further, we are not convinced by the defendant’s argument that the mere use of the word “any” in the phrase “[u]pon the death of any partner” in paragraph four, obliged all of the surviving partners to buy out the plaintiffs interest in the partnership. Since it was only the defendant and his brother who executed the amended buy and sell agreement, we conclude that “any partner” was only intended to bind those two partners.

Finally, the defendant’s claim that § 34-80 obliges all five surviving partners to purchase the plaintiffs partnership interest is without merit. As we have stated, § 34-80 provides that unless it is otherwise agreed, upon the death of a partner, the person or partnership continuing the business shall purchase the deceased partner’s interest in the partnership. We concluded that since there was no indication that the partners intended for the partnership to continue after the death of a partner, § 34-80 would require the partnership to purchase the deceased brother’s partnership interest. It was clearly “otherwise agreed,” however, as manifested by the original and amended buy and sell agreements between the defendant and his brother, that the deceased partner’s interest must specifically be purchased by the surviving brother, as partner. Therefore, as provided for in § 34-80, the words of the buy and sell agreement are given precedence over the general rule in § 34-80 that the entire partnership must purchase the deceased partner’s interest in the partnership.

The judgment is affirmed.

In this opinion the other judges concurred.

       Before trial, the plaintiff withdrew her claims of conversion of her husband's partnership interest and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendant also withdrew his counterclaims alleging the decedent’s neglect of and unjust enrichment from the partnership.

       General Statutes § 34-314 provides in relevant part: “Formation of partnership. (a) Except as otherwise provided in subsection (b) of this section, the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” Subsection (c) of the statute provides in relevant part: “(3) A person who receives a share of the profits of a, business is presumed to be a partner in the business . . . .” (Emphasis added.)