State v. Campbell

141 Conn.App. 55

60 A.3d 967

STATE of Connecticut

v.Milton CAMPBELL.

No. 33142.

Appellate Court of Connecticut.

Argued Oct. 11, 2012.

Decided Feb. 26, 2013.

Charles F. Willson, special public defender, for the appellant (defendant).

Linda Currie–Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Pamela J. Esposito, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and ESPINOSA and SHELDON, Js.

DiPENTIMA, C.J.

The defendant, Milton Campbell, appeals from his conviction of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(1), and of being a persistent serious felony offender in violation of General Statutes § 53a–40 (c) and (j). On appeal, the defendant claims that he was deprived of a fair trial due to improper statements made by the prosecutor during closing arguments. We disagree that the prosecutor's statements deprived the defendant of a fair trial, and therefore affirm the judgment of conviction.

The jury reasonably could have found the following facts. The victim met the defendant in a substance abuse program in 2009. The victim ¹ checked into the program for her use of cocaine. In November, 2009, the victim and the defendant agreed to get high together. The victim picked the defendant up from his home in Bridgeport on November 6, 2009. After purchasing alcohol from a local store and obtaining cocaine, the victim went back with the defendant to his home, where they consumed the alcohol and she used her cocaine. Once she had consumed the drugs, the victim intended to leave the defendant's house, but the defendant blocked her way and made sexual advances toward her. The defendant turned off the light, and the victim felt something sharp against her throat, which she thought was a knife. The defendant then instructed the victim to take off her clothes. Fearing for her safety, the victim complied, but asked the defendant to use a condom. The defendant put on a condom and proceeded to have intercourse with the victim both vaginally and anally. At a certain point, the defendant stopped, and the victim asked to go to the bathroom, but the defendant would not permit her to do so. The victim testified that the defendant seemed to go into a kind of “zone” of semiconsciousness, and, in that time, she called his father, who lived upstairs, and 911. The Bridgeport police responded to the victim's call, but when they knocked on the door, the defendant held his hands around the victim's throat to keep her quiet. The police left the defendant's residence, and the victim asked to use the bathroom again. The defendant allowed her to go, and when she was finished, he went into the bathroom. While he was in the bathroom, the victim ran out of the house to her car, which was parked on the street outside, wearing only a T-shirt and socks. After driving for a short period, the victim pulled over and called 911 again.

The police arrived at the victim's vehicle, provided her with a blanket and sent her to a hospital. At the hospital, the victim underwent a physical examination through the use of a rape kit ² and was given antipregnancy and antiHIV medication, in addition to a shot for sexually transmitted diseases. The police questioned the victim at the hospital, and she gave them a description of the defendant, as well as the details of the incident.

The next day, November 7, 2009, the defendant was arrested at his home. In an amended information, the defendant was charged with sexual assault in the first degree in violation of § 53a–70 (a)(1), kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(A), and being a persistent serious felony offender pursuant to § 53a–40 (c) and (j). The defendant pleaded not guilty to the sexual assault and kidnapping charges.

The trial began on October 22, 2010. The state presented evidence that included the results of the victim's rape kit examination, photographs of the defendant's house, audio recordings of 911 calls made by the victim, a crack pipe, clothing recovered from the victim and from the defendant's home on the night of the incident, the victim's medical records, a forensic biology section report and a DNA section report. The state presented as a witness the nurse who examined the victim and, as expert witnesses, two forensic analysts from the state forensic science laboratory.

On October 29, 2010, the jury returned a verdict of guilty on the charge of sexual assault in the first degree, but failed to reach a verdict on the charge of kidnapping. The court declared a mistrial on the kidnapping count. Following the verdict, the court accepted the defendant's plea of nolo contendere to the amended part B information. On January 10, 2011, the court sentenced the defendant to a term of twenty-five years imprisonment for sexual assault in the first degree, as enhanced by the charge of being a persistent serious felony offender. The state entered a nolle prosequi as to the count of kidnapping in the first degree. This appeal followed.

The sole issue on appeal is whether the defendant was denied his right to a fair trial as a result of prosecutorial impropriety. Our standard of review concerning claims of prosecutorial impropriety is well settled. “[T]o deprive a defendant of his constitutional right to a fair trial ... the prosecutor's conduct must have 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 [impropriety].” (Internal quotation marks omitted.) State v. Johnson, 71 Conn.App. 272, 285, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002), cert. denied, 537 U.S. 1207, 123 S.Ct. 1286, 154 L.Ed.2d 1052 (2003). In analyzing claims of prosecutorial impropriety,we engage in a two step process; each step is separate and distinct. See State v. Long, 293 Conn. 31, 36, 975 A.2d 660 (2009). “First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 808, 981 A.2d 1030 (2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3386, 177 L.Ed.2d 306(2010).³

I

We first turn to the question of whether prosecutorial impropriety occurred. “[A]n impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial.” State v. Long, supra, 293 Conn. at 36, 975 A.2d 660. “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.... Thus, as the state's advocate, a prosecutor may argue the state's case forcefully....” (Internal quotation marks omitted.) State v. Ovechka, 118 Conn.App. 733, 744, 984 A.2d 796, cert. denied, 295 Conn. 905, 989 A.2d 120 (2010).

The defendant contends that during her closing argument and rebuttal, the prosecutor made improper statements. Specifically, the defendant challenges (1) the prosecutor's use of “you” throughout her arguments as “golden rule” arguments, (2) the prosecutor's discussion of the habits of drug addicts as inappropriate testimony from a nonexpert and (3) the prosecutor's discussion of the victim's reasons for agreeing to the rape kit examination as inappropriate bolstering of the victim's credibility. We agree that there was prosecutorial impropriety as to the prosecutor's use of “you” when discussing the victim's mental state after the incident. We also agree that the prosecutor improperly opined as to the drug habits of addicts, although we do not agree that her use of “you” in that same statement rose to the level of impropriety. Further, we disagree that there was impropriety in the prosecutor's other uses of “you” and in her discussion of the victim's reasons for agreeing to a rape kit examination.

A

There are limits to the zeal with which a prosecutor may present her case. One such limitation is the use of a “golden rule” argument. “[A] golden rule argumentis one that urges jurors to put themselves in a particular party's place ... or into a particular party's shoes.... Such arguments are improper because they encourage the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.... They have also been equated to a request for sympathy.” (Internal quotation marks omitted.) State v. Long, supra, 293 Conn. at 53–54, 975 A.2d 660. The defendant argues that the prosecutor's use of the word “you” more than thirty times throughout her summation and rebuttal was inappropriate. We disagree that every use was inappropriate, but we agree that in one instance the prosecutor's statements rose to the level of impropriety.

We look first to the prosecutor's use of “you” when discussing the victim's mental state after the incident. The state argues that the prosecutor's use of “you” was merely colloquial, and meant to encourage the jurors to use common sense to make reasonable inferences, not to put themselves in the victim's shoes. We disagree.

In her rebuttal, the prosecutor stated, in relevant part: “And part of [the victim's] addiction is that she made bad choices. And guess what? Being raped didn't cure her of that addiction. It didn't cure her of making cloudy decisions; isn't...