State v. Marrero-Alejandro

159 Conn.App. 376

122 A.3d 272

STATE of Connecticut

v.Gilberto O. MARRERO–ALEJANDRO.

No. 37165.

Appellate Court of Connecticut.

Argued April 14, 2015.

Decided Aug. 25, 2015.

James B. Streeto, senior assistant public defender, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and John H. Malone, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and LAVINE and ALVORD, Js.

Opinion

LAVINE, J.

The defendant, Gilberto O. Marrero–Alejandro, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a–54a. On appeal the defendant claims that (1) his due process rights were violated as a result of improper remarks made by the prosecutor during closing argument and rebuttal, (2) the trial court improperly denied his motion to suppress certain statements he made to the police and certain DNA evidence, (3) the court improperly admitted uncharged misconduct evidence, and (4) the court abused its discretion in denying his request to replace his trial counsel. We affirm the judgment of the trial court.

The defendant's conviction arises from the murder of the victim, Jose Cruz–Diaz. The jury reasonably could have found the following facts on the basis of the evidence presented at trial. In August, 2010, the defendant resided in Bristol after moving from Puerto Rico earlier that spring. His friend Henry Bermudez helped him move to Connecticut. During that summer, Bermudez worked for a drug ring run by Christian Bonilla. The defendant then began working for Bonilla selling illegal drugs. Carrie Skinner purchased narcotics from Bonilla and met the defendant during these drug transactions. The defendant subsequently began a romantic relationship with Skinner. During this time, Skinner also was dating the victim a rival drug dealer. Skinner's simultaneous romantic relationships led to a toxic love triangle among the victim, the defendant, and herself.

Bonilla and the victim were engaged in a turf war over the Bristol drug scene. Bonilla allegedly stole a gold chain from the victim, and in retaliation, on August 13, 2010, the victim shot at Bonilla's car. In an effort to seek revenge against the victim, Bonilla offered to pay the defendant $1000 to kill him. On August 15, 2010, the defendant traveled to the victim's home in Bristol and shot him multiple times. The defendant fled on foot. An eyewitness recovered a sweatshirt near the crime scene and gave it to the police. After the shooting, the defendant left the state. Bermudez bought the defendant a bus ticket to Springfield, Massachusetts and gave him $1000 from Bonilla for killing the victim.

On August 23, 2010, the Massachusetts State Police executed an outstanding warrant on Oscar Rivera at his apartment in Springfield. The defendant had no identification when the police found him in Oscar Rivera's apartment. He agreed to accompany the officers to the police station for fingerprint identification. Carlos Rivera, a Massachusetts state trooper, became aware that the Bristol Police Department had an interest in speaking with the defendant. While he was at the station, the defendant agreed to talk to Bristol police officers who had traveled to Springfield to speak with him regarding the victim's death. The Bristol officers questioned the defendant at the local district attorney's office for approximately one hour and forty minutes before the defendant invoked his right to counsel and stopped the interview.

Before the defendant left the district attorney's office, the Bristol police officers asked him for permission to obtain a buccal swab of his mouth. The defendant agreed. Biological material from the swab was tested to determine the defendant's DNA profile. The sweatshirt tested positive for the presence of gunshot residue on both cuffs and inside the front right pocket. The DNA analysis of the biological material taken from the front pocket of the sweatshirt and from the buccal swab could not eliminate the defendant as a contributor to the DNA profile.

The defendant was arrested and charged with murder in violation of § 53a–54a. He pleaded not guilty and elected a trial by jury. After the jury found the defendant guilty, the court sentenced him to sixty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that he was deprived of his due process right to a fair trial as a result of prosecutorial impropriety. In particular, the defendant claims that the prosecutor improperly (1) misstated the facts of the case and (2) appealed to the emotions, passions, and prejudices of the jury during his closing argument and rebuttal. The state argues that the prosecutor's comments were not improper. Alternatively, the state contends that even if some of the prosecutor's comments were improper, none of them deprived the defendant of a fair trial. We do not agree that the prosecutor engaged in impropriety and, accordingly, reject the defendant's claim.

Our standard of review is well established. “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process.... The two steps are separate and distinct.... We first examine whether prosecutorial impropriety occurred.... Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial.... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry.... [If] a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show ... that the remarks were improper....” (Internal quotation marks omitted.) State v. Grant, 154 Conn.App. 293, 319, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015).

Because the claimed prosecutorial improprieties occurred during closing arguments, we advance the following legal principles. “[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, [provided the argument is] fair and based upon facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Chase, 154 Conn.App. 337, 342–43, 107 A.3d 460, cert. denied, 315 Conn. 925, 109 A.3d 922 (2015). The defendant concedes that he did not object at trial to any of the statements that he now claims constituted prosecutorial impropriety. “It is well established law, however, that a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of State v. Golding, [213 Conn. 233, 239–40, 567 A.2d 823 (1989) ].” State v. Grant, supra, 154 Conn.App. at 319, 112 A.3d 175.

On appeal, the defendant claims that the prosecutor “engaged in a pattern of prosecutorial impropriety.”¹ He argues that the prosecutor “engaged in a vicious attack on the defendant, argued facts not in evidence, appealed to the jury's emotions, and denigrated the defendant's credibility.”² We consider the arguments raised in support of the defendant's claim as falling into two broad categories: that the prosecutor improperly (1) misstated facts of the case and (2) appealed to the emotions, passions, and prejudices of the jury. We will address each in turn.

A

We first examine the defendant's claim that, during closing argument, the prosecutor made a number of improper comments that misstated the evidence and argued facts not in evidence. Specifically, the defendant argues that the prosecutor misstated the DNA evidence and argued facts not in evidence related to the state's witness, Bermudez. We disagree with the defendant.

The defendant argues that the prosecutor in his closing argument committed “the prosecutor's fallacy” by improperly equating random match probability with source probability in relation to the DNA evidence presented.³ The defendant takes issue with the prosecutor's statement made during his closing argument: “Now, what we've learned of the DNA evidence is the chances of someone else wearing those pants is one [in] seven billion, seven billion being the number of people on this earth, for the sweater, particularly the pocket of the sweater the chances of someone else other than the defendant leaving that is one in seven billion that piece of DNA.” The state argues that the prosecutor's comment “did not equate the random match probability with the probability that the defendant was guilty of the crime charged but, rather, used the statistics to suggest that the jury could infer that his DNA was found in the hooded sweatshirt, among other items.” We agree with the state.

Under the totality of the circumstances, we conclude that the prosecutor's comment regarding the DNA evidence, an inherently complex subject, was not improper. The jury heard extensive testimony from Cheryl Carreiro, a DNA analyst at the state forensic science laboratory, regarding the testing of the defendant's DNA. “A prosecutor may invite the jury to draw reasonable inferences from the evidence ... such inferences must be both reasonable and based on facts in evidence.” (Citation omitted; internal quotation marks omitted.) State v. Swain, 101 Conn.App. 253, 272, 921 A.2d 712, cert. denied...