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State v. Rivera

Court of Appeals of Connecticut

November 15, 2016

STATE OF CONNECTICUT
v.
JOSUE RIVERA

          Argued September 8, 2016

         Appeal from Superior Court, judicial district of New Haven, B. Fischer, J.

          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.

          OPINION

          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.

         I

         PROSECUTORIAL 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., 32.

         ‘‘[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).

         A

         Alleged 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 rights[4] 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.'' (Citation omitted; internal quotation marks omitted.) State v. Parrott, 262 Conn. 276, 292-93, 811 A.2d 705 (2003).

         ‘‘When reviewing the propriety of a prosecutor's statements, we do not scrutinize each individual comment in a vacuum but, rather, review the comments complained of in the context of the entire trial. . . . [W]hen a prosecutor's potentially improper remarks are ambiguous, a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.'' (Citation omitted; internal quotation marks omitted.) State v. Felix R., 319 Conn. 1, 9, 124 A.3d 871 (2015).

         Here, the defendant argues that the prosecutor's remarks were explicitly directed toward the defendant's failure to testify because the plain language, ‘‘that's [the defendant], '' ‘‘[i]n this courtroom, '' and ‘‘sit in that chair, '' leaves no room for any other possible interpretation. He asserts that the improper remarks attempted to inextricably link the defendant's credibility and viability of his self-defense claim to his failure to take the witness stand, as most clearly illustrated by his comment that the defendant was the ‘‘one person'' who ‘‘can tell [the jury] exactly what happened'' because ‘‘[t]he only other person'' was the victim. The state argues that, if the comments are viewed in their full context, the prosecutor was stating to the jury that it needed to assess carefully the credibility of the two statements that the defendant provided to police because the only two people who had firsthand knowledge of what occurred on the day the victim was killed were the defendant and the victim.

         In this case, we conclude that although, in isolation, the statements relied on by the defendant could be construed as referring to the defendant's decision not to testify, if the statements are put into the context of the entire trial and closing argument, the prosecutor's remarks refer to the evidence of the defendant's two statements to the police. Two of the challenged statements made by the prosecutor-‘‘[i]n 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], and ‘‘[t]he only other person that we know is [the victim] and, unfortunately, he's not here, or we wouldn't be here''-are immediately preceded and followed by language referring to the defendant's out-of-court statements, i.e., his statements to the police. Moreover, ‘‘[i]n this courtroom'' arguably describes the current location of the ‘‘one person, '' that is, the defendant, who is able to ‘‘tell [the jury], '' that is, via his statements to the police, which were admitted at trial, what had happened on the day of the victim's death. To parse the sentence even further by examining what the prosecutor intended when he said, ‘‘can tell you exactly what happened, '' instead of, more accurately, ‘‘did tell you exactly what happened, '' would be to scrutinize each of the prosecutor's individual words in a vacuum, precisely what this court should not do. (Emphasis added.) See State v. Felix R., supra, 319 Conn. 9. We necessarily allow the prosecutor generous latitude in closing argument, lest every inaccurate verb tense be deemed impropriety.

         The challenged comment that is most equivocal in its meaning is the prosecutor's question, ‘‘Does somebody have a stake when they sit in that chair and testify for you?'' It is unclear whether the prosecutor was referring to the stake that any witness has when he or she sits in the witness chair and testifies at trial, the stake that the defendant specifically has when he sits in the witness chair and testifies at trial, or the stake that the defendant specifically has when he sits in a chair at the police station and gives his version of events, as presented to the jurors at trial. We conclude that this segment of the closing argument was, at worst, sufficiently ambiguous that it clearly was not ‘‘manifestly intended to be, [nor] 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 . . . .'' (Internal quotation marks omitted.) State v. Parrott, supra, 262 Conn. 293. Because ‘‘a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning''; State v. Felix R., supra, 319 Conn. 9; we decline to accept the defendant's interpretation of the prosecutor's comments. Accordingly, we conclude that the challenged statements do not constitute improper comments by the prosecutor on the defendant's failure to testify.[6]

         B

         Alleged Misstatement of Burden of Proof

         The defendant next contends that the prosecutor misled the jury by misstating the burden of proof regarding self-defense. More specifically, the defendant argues that the prosecutor improperly used the language ‘‘probable'' and ‘‘possible'' instead of ‘‘beyond a reasonable doubt.'' The state responds by arguing that the prosecutor's language was not improper because it was made in reference to a subsidiary finding by the jury, not a finding on one or more elements of self-defense. We agree with the state.

         During the state's direct examination of James R. Gill, the state's chief medical examiner, the prosecutor asked if the victim's wounds were consistent with the victim having been lying down at the time he was stabbed, to which Gill replied: ‘‘Certainly, if he's [lying] down prone . . . on his back, it would be a matter of having that surface of the body where the stab wound was to be able to be reachable or exposed to the knife.'' Subsequently, during cross-examination, the defendant's counsel engaged Gill in the following exchange:

‘‘Q. Dr. Gill, from your examination of the body of [the victim], who started the fight?
‘‘A. I have no idea if there even was a fight. . . .
‘‘Q. And you don't know where [the victim] was standing in relation to the person who stabbed him, correct?
‘‘A. Yeah, I don't know if he was standing, sitting, lying down; that's correct.
‘‘Q. Actually, it could be-as long as the-the arm could reach to the spot where the stab wound went in, it could be in any position, correct?
‘‘A. It could be from behind, reaching around, yeah, a variety of positions, yeah.''

         After this line of questioning, the defendant and his counsel performed demonstrations in the courtroom in which they modeled several positions that the defendant and the victim may have been in when the altercation began and the victim sustained various injuries. The defendant's counsel then followed up the presentations by asking Gill if each demonstration was consistent with the wounds of the victim as contained in the autopsy findings.[7] Subsequently, during closing argument, the prosecutor referenced these enactments and stated: ‘‘You saw the defendant and his attorney provide demonstrations here in the courtroom; seemed pretty creative. Is it possible? Yes, it's possible. But what is more probable in light of the injuries?'' (Emphasis added.)

         We turn then to the authorities relevant to this claim. The defense of self-defense is codified in General Statutes § 53a-19, which provides in relevant part: ‘‘(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.''

         ‘‘Under our Penal Code, self-defense . . . is a defense . . . rather than an affirmative defense. . . . Consequently, a defendant has no burden of persuasion for a claim of self-defense; he has only a burden of production. That is, he merely is required to introduce sufficient evidence to warrant presenting his claim of self-defense to the jury. . . . Once the defendant has done so, it becomes the state's burden to disprove the defense beyond a reasonable doubt. . . . The state may defeat a defendant's claim of self-defense involving deadly physical force by proving, beyond a reasonable doubt, any of the following: (1) the defendant did not reasonably believe that the victim was using or about to use deadly physical force or inflicting or about to inflict great bodily harm; or (2) the defendant knew that he ...


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