State v. Pernell

194 Conn.App. 394

221 A.3d 457

STATE of Connecticut

v.Anthony PERNELL

AC 42470

Appellate Court of Connecticut.

Argued September 5, 2019

Officially released November 19, 2019

Lisa J. Steele, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

Lavine, Prescott and Bear, Js.

LAVINE, J.

The defendant, Anthony Pernell, 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 the prosecutor committed prosecutorial improprieties in his closing argument, which deprived the defendant of his due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In March, 2015, the defendant; his mother, Gail Grant (mother); and half brother, Christopher Grant (Grant), resided in a three bedroom apartment located at 48 Congress Street in Hartford (apartment). On March 17, 2015, the defendant and Lilliana Restrepo, the victim, were together in the defendant's bedroom smoking phencyclidine (PCP) while the victim got ready for work. When the victim went to leave for work, the defendant shot her with a revolver (gun) at close range in the center of her forehead.

The defendant was taken into custody and interviewed by the police.¹ The defendant told the police that the victim was his friend. He stated that the victim was stressing about her son and that she wanted to kill herself because the Department of Children and Families took her son away. The defendant stated that he took the gun out of a bag to show the victim, and she was playing with it. The defendant said that he tried to stop her, but he accidentally pulled the trigger when he grabbed the gun from her. He claimed that it went off because the victim already had cocked the gun. The defendant stated that he was standing in front of the victim when the gun went off. He also stated: "I wasn't giving her the gun when I shot her in the head.... I tried grabbing the gun from her ... and the shit went off. I told you, it's kind of ... man, that's why I said it, it was just kind of strange. And then ... I feel like they probably wouldn't believe ... me ... that's why I kind of ... made it look like she killed herself.... Like, actually she had the gun aimed, I grabbed.... Do you understand what I'm saying?" The defendant admitted that he put the gun in the victim's hand to make it look like she shot herself. He also admitted that he did not call an ambulance after the victim was shot.

The detectives attempted to take the defendant's written statement. During that discussion of the events, the defendant stated: "I was dirty with drugs ... basically that's why I came up with this story.... I just don't want to get involved in this shit at all. I was trying to keep myself cleared ... because I had drugs on me," and "I just said that because I had the drugs on me.... I don't know really what happened. I came and checked my phone ... I went outside to make a couple [drug] sales. I came back, and I found her like that." The defendant claimed that he told the police that he had shot the victim to cover up that he had drugs on his person. After that exchange, the detectives left the interview room. In their absence, the defendant knocked on the interview room door and, when the detectives opened the door, the defendant said: "I just want to tell you guys the truth, man, because I know you won't believe me .... I grabbed the gun by accident, man. I know y'all wouldn't believe me, man." The defendant claimed that this was the truth.

The defendant was arrested and charged with murder, possession of narcotics with intent to sell, and criminal possession of a revolver.²

Both the defendant and Grant testified at trial. Their respective testimonies are relevant to our evaluation of the defendant's claims on appeal and are, therefore, summarized herein. The defendant testified that when he and the victim were smoking in his bedroom, the victim exchanged a series of phone calls with her mother to arrange for a ride to work. After the victim told her mother that she would find her own ride to work, a heated conversation ensued between the victim and her mother. The defendant further testified that the victim asked him if he would be there for her as a friend, and that she also expressed that she was getting emotionally close to the defendant. The defendant testified that the victim said she felt stupid and ugly, and so the defendant told her that he would be there for her in the best way that he could. The defendant testified that, after that exchange, the victim stated that "she was tired of everybody" and started texting. At that time, the defendant testified that he looked for a CD-ROM to play to calm her down because she was aggravated from the phone call and disappointed that the defendant did not realize how she felt toward him emotionally. The defendant further testified that the victim, who the defendant called Lill, took a gun from the defendant's closet and that: "I said, what you got in your hand? I'm like, Lill, and this is what I said, what the fuck are you doing? She like, no, I'm tired.... You ain't right.... I said, what you talking about? Then, at this time, I'm standing up because she got a gun in her hand and thought ... maybe she [was] going to shoot me or she might kill herself ...." The defendant continued: "I ask her, what the fuck she doing. She just said she was tired of everybody and I'm not right. And I said, Lill, what you doing? She kicked the handle back. I said, Lill, you can't do this. We in my mother's house. I said, we all go to jail if you do this. At this time, she started putting the gun up like this, and I got closer. By the time she had it to her head, I pulled it back, she put it in the other hand and it went off. And then it dropped." The defendant testified that he paced in his room, and that he then picked the gun up and put it on his bed. Then he went into Grant's adjacent bedroom and woke him up.

Grant testified that the defendant and the victim were friends, and that their relationship may have been sexual in exchange for drugs. Grant testified that on the day of the shooting, the defendant came into his room, woke him from sleep, and said that he had done something wrong and shot the victim. Grant further testified that he asked the defendant if he was joking, and the defendant could not clarify, and so the defendant told Grant to go in the next room and look for himself. They went into the defendant's bedroom together, where Grant observed the victim lying with her head back in a basket. Grant testified that he checked the victim's pulse on her left arm. He testified that the defendant then "showed me that he had shot her" and that "[b]ecause her face was facing the other direction to the side, I didn't see the bullet wound at first, and he showed me that it was there." It was at that time that Grant learned that the victim was dead. Grant asked the defendant what happened, but the defendant could not answer him. They stayed in the defendant's bedroom for about fifteen minutes. Grant testified that, after fifteen minutes, they stepped into the hallway, where they stayed for twenty to forty minutes. After that time, the defendant went back into the bedroom to try and wake the victim up. Grant had to pull the defendant off the victim and close the door to the bedroom. Grant testified that the defendant then received a call to make a drug sale and that he left the apartment.

When the defendant returned from his drug sale, Grant testified that he and the defendant made their way back to the defendant's bedroom. According to Grant, the defendant suggested at that time that "he makes it look like a suicide." Grant told the defendant that that would not be the right thing to do, and he turned away from the defendant's bedroom. The defendant testified that, when Grant left the bedroom, "I sat on the bed, and I started thinking, just started looking at her. I didn't know what to do. I just sit there for a minute and then my mind start racing like, man, when I tell them this, they ain't never going to believe me. So, I just started clicking like, I said, man, my story, they ain't going to believe this, so I put the gun in her hand to make it look like what it was. I tried to grab, but it went off." The defendant further testified that he saw that the victim's mother was calling the victim's cell phone again, but he did not answer the phone. The defendant removed the cell phone from the victim's hand and placed the gun in her hand.

Grant called his girlfriend, mother, and uncle, and his mother called the police. The responding police officer, Dominick Agostino, testified that, upon entering the apartment, he heard Grant on the telephone stating: "He shot her. He shot her. I can't believe this." Agostino observed the defendant frantically scan the area and look for a place to escape but was unable to do so.

On the basis of the evidence presented at trial, the jury found the defendant guilty of murder in violation of § 53a-54a, and the court accepted the jury's verdict. The defendant was sentenced to a term of fifty years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the state violated his due process right to a fair trial when the prosecutor committed six separate improprieties during closing argument. He argues that the prosecutor expressed personal opinions, discussed facts not in evidence, and appealed to the jurors' emotions. The defendant contends that his intent when the victim was shot was "the key issue in this case," and that the claimed improprieties were harmful because the state's case was weak. The state concedes...