State v. Gibson

302 Conn. 653

31 A.3d 346

STATE of Connecticut

v.Gary D. GIBSON.

No. 18402.

Supreme Court of Connecticut.

Argued Sept. 20, 2011.Decided Nov. 22, 2011.

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Christian Watson, assistant state's attorney, for the appellant (state).

David B. Rozwaski, special public defender, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

The defendant, Gary D. Gibson, was convicted, after a jury trial, of failure to appear in the first degree in violation of General Statutes § 53a–172 (a)(1),¹ and was acquitted of a charge of stalking in the first degree in violation of General Statutes § 53a–181c. ² The defendant appealed from the judgment of conviction to the Appellate Court, which reversed the conviction on the ground that improper statements by the prosecutor during closing argument had deprived the defendant of his constitutional due process right to a fair trial. State v. Gibson, 114 Conn.App. 295, 313, 969 A.2d 784 (2009). Thereafter, this court granted the state's petition for certification to appeal, limited to the following issues: “Did the Appellate Court properly determine that the trial prosecutor's two uses of the words ‘I think’ while marshaling the evidence during closing argument amounted to prosecutorial impropriety? If so, did the Appellate Court properly conclude that the alleged impropriety deprived the defendant of the due process right to a fair trial?” State v. Gibson, 292 Conn. 916, 973 A.2d 1276 (2009). We conclude that the prosecutor's remarks were not improper and, accordingly, we reverse in part the judgment of the Appellate Court.

The jury reasonably could have found the following facts. On October 23, 2005, the victim, David Farineau, arrived at a Stop and Shop grocery store in Bristol and noticed a blue Jeep Liberty in a parking space on Pine Street. When the victim left the Stop and Shop a few minutes later, he noticed that the Jeep was behind him. The Jeep followed the victim to a gasoline station and continued to follow him as he drove home. The victim recognized the driver of the Jeep as the defendant because the defendant previously had been convicted of stalking the victim in violation of General Statutes § 53a–181d.

Thereafter, the defendant was charged with stalking in the first degree. In connection with that charge, the defendant appeared at a pretrial proceeding before the court, Dunnell, J., on April 4, 2006, at which the prosecutor, defense counsel and the court engaged in the following colloquy:

“[Defense Counsel]: Good morning, Your Honor. Frank Canace for [the defendant]. I spoke with the state yesterday. I think we're looking for a date for victim's contact?

“[The Prosecutor]: Yes.

“[Defense Counsel]: May I have May 5, [2006] if that's convenient with the court?

“The Court: May 5?

“[Defense Counsel]: Yes, ma'am.

“The Court: Yes.”

When the defendant failed to appear in court on May 5, 2006, the trial court, upon the state's request, ordered that the defendant be rearrested and charged with failure to appear in the first degree. After being notified that there was a warrant out for his rearrest, the defendant turned himself in to the police on May 11, 2006.

At trial, the state introduced the transcript of the April 4, 2006 proceeding into evidence. It also presented as a witness, Laura Leigh, the head clerk of the Superior Court for the judicial district of New Britain, geographical area number seventeen at Bristol, who testified that, on May 5, 2006, the trial court had ordered that the defendant be rearrested and that the reason for the rearrest was that the defendant had failed to appear in court. The defendant testified that he had not appeared at the May 5, 2006 hearing because, three weeks after the April 4, 2006 court date, he had decided that he should enter the court date into his cell phone calendar and, at the time, he mistakenly believed that the hearing had been scheduled for May 16, 2006. He further testified that he had not failed to appear intentionally and that he had turned himself in to the police immediately upon learning that the trial court had ordered his rearrest.

During closing argument to the jury on the failure to appear charge, the prosecutor stated: “In terms of proving the case for failure to appear, let's logically go through this. You just recently heard testimony from [the defendant]. The state alleges the following through its witnesses: [The defendant] was standing up in front of the court, in front of a judge, standing facing the judge on April 4 of 2006, and during a colloquy where [the defendant] was standing directly to the right of his attorney, the judge indicated May 5. And [defense counsel] asked for May 5. [The defendant] admitted to knowing [and] standing in front of the judge and saying, yeah, I knew my court date was May 5. I heard it twice. He knew his court date was May 5, yet on May 5, where was [the defendant]? He wasn't in court. You heard the testimony from the [court] clerk. [The defendant] was ordered rearrested. His bond was forfeited, and he was ordered rearrested. Why does a rearrest happen, Madam Clerk-when the defendant isn't in court? Did the defendant wilfully [fail] to appear in court on May 5, 2006? I think he did. Is it safe to assume [that the defendant], sometime after May 5, when he realized that he got rearrested, conveniently came up with the new court date of May 16? I think it's pretty safe to assume that, ladies and gentlemen. He never called the clerk's office, never called his attorney, never called anybody to see if his court date was changed. But he got that court date on April [4], and they told him it was May 5, twice.” Defense counsel did not object to these remarks.

The trial court, Schuman, J., instructed the jury that “[c]ertain things are not evidence, and you may not consider them in deciding what the facts are. These include ... arguments and statements by lawyers. The lawyers are not witnesses. What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence.”

The jury returned a verdict of not guilty on the stalking charge, but found the defendant guilty on the failure to appear charge. The trial court rendered judgment in accordance with the verdict and the defendant appealed from the judgment of conviction to the Appellate Court, claiming that the prosecutor's use of the phrase “I think” twice during closing argument constituted an improper expression of personal opinion, improperly suggested that the prosecutor had personal knowledge of the case that was unavailable to the jury, and deprived the defendant of his due process right to a fair trial. State v. Gibson, supra, 114 Conn.App. at 306–307, 969 A.2d 784. A majority of the Appellate Court agreed with the defendant and reversed the judgment of conviction on the failure to appear charge.³ Id., at 319, 969 A.2d 784.

This certified appeal followed. The state contends that the majority of the Appellate Court improperly determined that the prosecutor's remarks were improper because the prosecutor was merely exhorting the jury to draw reasonable inferences from the evidence. It further claims that, even if the remarks were improper, they did not rise to the level of a due process violation. The defendant contends that, to the contrary, the majority of the Appellate Court properly concluded that these remarks constituted an improper expression of the prosecutor's personal opinion regarding the defendant's guilt and his credibility, and that they were so egregious that “[i]t cannot be known whether the jury would have concluded that the defendant's conduct was wilful without the prosecutor's giving such a conclusion his personal stamp of approval....” Id., at 313, 969 A.2d 784.

“We previously have recognized that a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, [204 Conn. 523, 535–40, 529 A.2d 653 (1987) ]. See State v. Stevenson, 269 Conn. 563, 573–75, 849 A.2d 626 (2004).” State v. Grant, 286 Conn. 499, 545 n. 22, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008). “In analyzing claims of prosecutorial impropriety, we engage in a two step process.... 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. Salamon, 287 Conn. 509, 551, 949 A.2d 1092 (2008).

“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments.... In determining whether such [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, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.... Moreover, [i]t does not follow ... that every use of rhetorical language or device [by the prosecutor] is improper.... The occasional use of rhetorical devices is simply fair argument.... Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury's attention from the facts of the case.” (Internal quotation marks omitted.) State v. Camacho, 282 Conn. 328, 367–68, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.Ct. 388, 169 L.Ed.2d...