State v. Rivera

169 Conn.App. 343

150 A.3d 244

STATE of Connecticut

v.Josue RIVERA

AC 36979

Appellate Court of Connecticut.

Argued September 8, 2016

Officially released November 15, 2016

Susan M. Hankins, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom were Brian K. Sibley, Sr., senior assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, and Adrienne Maciulewski, deputy assistant state's attorney, for the appellee (state).

Beach, Prescott and Bishop, Js.

PRESCOTT, J.

The defendant, Josue Rivera, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a–55 (a) (1) and tampering with physical evidence in violation of General Statutes § 53a–155 (a). On appeal, the defendant claims that (1) the prosecutor violated his constitutional and statutory right to remain silent, and his constitutional due process right to a fair trial as the result of improper comments made during closing arguments, (2) the trial court improperly permitted a police officer to testify as an expert witness about body language and other indicators of untruthfulness, (3) the trial court abused its discretion by admitting into evidence postmortem photographs of the victim, and (4) the trial court violated the defendant's statutory right to present a defense by excluding evidence relevant to the defendant's theory of self-defense.¹ We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Sometime in April or May, 2012, the victim, Anthony Pesapane, began living with the defendant and the defendant's family in a first floor unit of a multifamily house in New Haven, an arrangement designed to help the defendant pay rent. The victim regularly attended a local clinic to receive daily methadone treatments, and would often drive the defendant and his wife, Marta Matejkowska, to the clinic for their treatments as well. The last time the victim ever attended the clinic, however, was on June 4, 2012.

Later that day, while in the victim's bedroom, the defendant fatally stabbed the victim twenty-one times. One wound was 3.5 inches deep in the victim's chest and punctured his heart. After the victim died, the defendant cleaned the room with bleach, discarded the knife into the Quinnipiac River, and rolled the victim's body up into a rug. The defendant then obtained a U–Haul truck and placed the body and other bloodstained items in the rear compartment of the truck.

On June 11, 2012, the police conducted a motor vehicle stop of the U–Haul in Woodbridge, and found Matejkowska in the driver seat and the defendant in the passenger seat. The police then opened the back of the truck, where they found the victim's body. After the body was discovered, the defendant gave two statements to the police, one written and one videotaped.²

On February 20, 2014, in a long form information, the defendant was charged with murder in violation of § 53a–54a (a) and tampering with physical evidence in violation of § 53a–155 (a). During his jury trial, the defendant claimed he acted in self-defense, but he did not testify. Ultimately, the defendant was acquitted of murder but convicted of the lesser included offense of manslaughter in the first degree in violation of § 53a–55 (a) (1) and of tampering with physical evidence. The defendant received a total effective sentence of twenty-three years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

IPROSECUTORIAL IMPROPRIETY

The defendant first claims that the prosecutor deprived him of his constitutional and statutory right to remain silent as well as his due process right to a fair trial by committing various acts of impropriety during closing argument to the jury. In particular, the defendant argues that the prosecutor improperly (1) commented on the defendant's failure to testify, (2) shifted and misstated the burden of proof with respect to self-defense, and (3) argued facts not in evidence. The state argues that the prosecutor's comments were not improper. Alternatively, the state contends that even if one or more of the prosecutor's comments were improper, none of them deprived the defendant of a fair trial. We disagree with the defendant that the prosecutor's comments were improper.

Before addressing the merits of the defendant's claim, we set forth the applicable standard of review and the law governing prosecutorial impropriety. Although the defendant did not preserve his claim of prosecutorial impropriety by objecting to the alleged improprieties at trial, "[o]nce prosecutorial impropriety has been alleged ... it is unnecessary for a defendant to seek to prevail under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant's claim under Golding ." (Footnote omitted.) State v. Fauci , 282 Conn. 23, 33, 917 A.2d 978 (2007). "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."³ (Citations omitted.) Id., at 32, 917 A.2d 978.

"[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... When making closing arguments to the jury, [however, counsel] 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." (Internal quotation marks omitted.) State v. Ciullo , 314 Conn. 28, 37, 100 A.3d 779 (2014).

AAlleged Comment on Defendant's Failure to Testify

We turn first to the defendant's argument that the prosecutor improperly commented during closing argument on the defendant's failure to testify, thereby violating the defendant's fifth amendment rights⁴ and General Statutes § 54–84 (a).⁵ In response, the state argues that the prosecutor's remarks referred to the two statements that the defendant made to police and that were admitted at trial, not to his failure to give in-court witness testimony. We conclude that the comments in question were not of such a character that the jury naturally and necessarily would construe them to be comments on the defendant's election not to testify.

During closing argument, the prosecutor directed the jury's attention to what he argued were the material pieces of evidence that the jury should consider when determining the defendant's guilt. The prosecutor stated: "What are some things you should look at? The two statements are probably the two most important things that give light to what happened here. In this courtroom there is one person [who] can tell you exactly what happened, to be truthful, and sit and ask questions, and that's [the defendant]. The only other person that we know is [the victim] and, unfortunately, he's not here, or we wouldn't be here. So, who has something to lose when they start telling the story about why they got caught with a body in the back of a truck? You have to come up with some explanation when the police are banging on that door, saying, tell me what's going on back here."

Shortly thereafter, the prosecutor again returned to the subject of the defendant's statements to the police, imploring the jury to "[t]ake a look at the statements; those are the two closest things that we're going to get to in terms of what happened.

The physical evidence speaks for itself. Does it line up with what we know? And what do we know? We know the story one person told. And the judge talks to you about credibility in terms of what you use to determine. Does somebody have a stake in what they're telling the police? Does somebody have a stake when they sit in that chair and testify for you? Who has the most to lose here? So, what does he say? Does his story in the statements make sense? When you're trying to recall a story about what actually happened, most of the time, you're going to get the facts straight because that's the truth you're testifying—you're recalling an event based on memory. But when you start trying to deceive somebody, those little details start falling away from what actually happened." The defendant did not object to these comments.

"It is well settled that comment by the prosecuting attorney ... on the defendant's failure to testify is prohibited by the fifth amendment to the United States constitution. ... Our legislature has given statutory recognition to this right by virtue of its enactment of ... § 54–84. In determining whether a prosecutor's comments have encroached upon a defendant's right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? ... Further, in applying this test, we must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury. ... Finally, [w]e also recognize that 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." (...