Argued November 16, 2015
Appeal from Superior Court, judicial district of New Britain, Alander, J.
Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).
Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and Kevin J. Murphy, former supervisory assistant state’s attorney, for the appellee (state).
Gruendel, Prescott and Schaller, Js.
The defendant, James Michael Fasanelli, appeals from the judgment of conviction, rendered after a jury trial, of one count of sale of narcotics by a person who is not drug-dependent in violation of General Statutes§ 21a-278 (b). On appeal, the defendant claims that he was deprived of his constitutional right to a fair trial as a result of prosecutorial impropriety during closing arguments. We disagree that the prosecutor’s arguments were improper and, therefore, affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In September, 2010, William Fredericks contacted Detective Louis Palmieri of the Southington Police Department about becoming a confidential informant in narcotics investigations. Upon meeting with the police, Fredericks informed them that he had received information from a third party who said that Fredericks could purchase heroin from the defendant at the Southington Motor Lodge (Lodge). Fredericks had been selling narcotics at this time and had criminal charges pending against him for third degree burglary and violation of probation.
On September 20, 2010, Fredericks contacted Detective Palmieri and agreed to participate in a controlled narcotics buy from the defendant. They arranged to meet at the Cadillac Ranch, located approximately two hundred yards from the Lodge. Fredericks met with Palmieri and Detective Kyle Dobratz, who patted down Fredericks and found no narcotics on his person. The detectives then outfitted Fredericks with a one-way audio recorder and twenty dollars. Officer Mark DiBattista monitored the audio device from a separate vehicle, which was parked so that he could view the defendant’s room at the Lodge.
Once equipped, Fredericks walked from the Cadillac Ranch to the Lodge, monitored audibly by Officer DiBattista the entire time. Fredericks walked to the defendant’s door at the Lodge and knocked. The defendant opened the door and a short conversation between Fredericks and the defendant was recorded. During the conversation, Fredericks inquired as to how many ‘‘bags’’ the defendant could ‘‘spot . . . .’’ The defendant responded two. Fredericks asked if the defendant could ‘‘do them for ten, ’’ to which the defendant responded, ‘‘[n]ope.’’ Fredericks then gave the defendant twenty dollars in exchange for the two bags of heroin and inquired as to how long it would take for the defendant to acquire more bags. The defendant and Fredericks planned to meet again later, and Fredericks began walking back to the Cadillac Ranch.
Upon arriving back at the Cadillac Ranch, Fredericks gave Detective Palmieri two small bags of heroin that he had obtained from the defendant. Detective Palmieri then searched Fredericks for additional drugs and money. Fredericks informed Detective Palmieri that he could buy additional bags of heroin from the defendant later that night.
Later that night, Fredericks again met with Detectives Palmieri and Dobratz at the Cadillac Ranch, and they followed the same procedures as before. The detectives searched Fredericks and wired him with the audio recording device. Fredericks then walked to the Lodge, knocked on the defendant’s door, and entered the room. Fredericks allegedly exchanged thirty dollars with the defendant for three bags of heroin. Fredericks returned to the Cadillac Ranch and gave the three bags of heroin to Detective Palmieri. Significant portions of the audio recording of this transaction between the defendant and Fredericks were inaudible due to radio interference.
On January 10, 2011, Detective Dobratz served an arrest warrant on the defendant, charging him with two counts of sale of narcotics in violation of § 21a-278 (b), one count for each transaction on September 20, 2010. After a jury trial, the defendant was convicted on count one (first transaction), and acquitted on count two (second transaction). The defendant was sentenced to eight years incarceration suspended after five years, followed by three years of probation. This appeal followed. Additional facts will be set forth as necessary.
The defendant claims that the prosecutor deprived him of his due process right to a fair trial by committing various acts of prosecutorial impropriety during his initial and rebuttal closing arguments to the jury. In particular, the defendant claims that the prosecutor improperly (1) impugned the role and integrity of defense counsel, (2) expressed his personal opinion by vouching for the credibility of a witness, 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 some 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.
We begin with the applicable standard of review and guiding legal principles. 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.’’ (Citations omitted.) Id., 32.
‘‘We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. . . . By reason of his [or her] office, [the prosecutor] usually exercises great influence [on] jurors. [The prosecutor’s] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. . . . That is not to say, however, that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Indeed, this court give[s] the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The state’s attorney ...