September 8, 2016
from Superior Court, judicial district of New Haven, B.
M. Hankins, assigned counsel, for the appellant (defendant).
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).
Prescott and Bishop, Js.
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. We affirm the judgment of the trial court.
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.
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.
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
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.
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.
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.'' (Citations omitted.) Id.,
[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).
Comment on Defendant's Failure to Testify
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 and General
Statutes § 54-84 (a). 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.
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.''
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
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).
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).
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
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.
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.
Misstatement of Burden of Proof
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.
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,
‘‘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.''
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. 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.)
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.''
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 ...