October 20, 2016
from Superior Court, judicial district of New Haven, Blue, J.
J. Foster, assigned counsel, for the appellant (defendant).
Timothy J. Sugrue, assistant state's attorney, with whom,
on the brief, were Patrick J. Griffin, state's attorney,
Maxine V. Wilensky, senior assistant state's attorney,
and Mary Elizabeth Baran, former senior assistant state's
attorney, for the appellee (state).
Sheldon and Flynn, Js. [*]
defendant, Kenneth Lee McCoy, appeals from the judgment of
conviction, rendered after a jury trial, of murder in
violation of General Statutes § 53a-54a (a). The
defendant claims that (1) the state engaged in prosecutorial
misconduct, thereby depriving him of his due process right to
a fair trial, and (2) the court erred in dismissing his
motion for a new trial for lack of jurisdiction. We disagree
and affirm the judgment of the trial court.
jury reasonably could have found the following facts. During
the fall of 2011, the victim, Dallas Boomer, saw both the
defendant and Tramont Murray, his close friends, on a daily
basis. The three men often conducted drug deals together out
of rental cars with out of state license plates. During
November, 2011, the defendant became estranged from both the
victim and Murray. According to Murray, the defendant and the
victim were involved in a financial dispute after the victim
crashed a car belonging to the defendant's girlfriend. In
addition, both the victim and Murray wanted to distance
themselves from the defendant because of the defendant's
alleged alcoholism and increasingly erratic behavior.
December 6, 2011, at approximately 1 o'clock in the
morning, the victim was sitting in the driver's seat of a
parked rental car on a residential street in New Haven.
Murray was sleeping in the reclined passenger seat. The
victim saw the defendant's car pull over to the side of
the road and idle nearby, so he shook Murray awake. Murray
instructed the victim to drive away. The defendant then
approached the victim's parked vehicle with his hand in
his sleeve and began shooting at the windshield. The victim
attempted to drive away, but could not. Six bullets struck
the rental car, and the victim suffered fatal injuries as a
after the shooting, Murray, the sole witness, was questioned
by the police. When the police asked Murray to identify the
shooter, he stated that he had not seen the shooter, that he
could not tell whether the shooter was white or black, and
that he did not know whether there was one shooter or
multiple shooters. Three weeks later, on December 27, Murray
made a second statement to the police in which he identified
the defendant as the shooter. Murray testified consistently
with this statement at the defendant's trial. Murray, who
then had three criminal cases pending against him, was
questioned extensively as to whether he had received a plea
deal in exchange for his testimony. He denied having received
a plea deal, but admitted that he had received immunity for
his testimony and $1100 in cash for relocation as part of a
witness protection program.
months after the jury found the defendant guilty, the court,
Blue, J., sentenced him to sixty years
incarceration. This appeal followed. Additional relevant
facts will be set forth as necessary.
defendant first claims that prosecutorial impropriety
deprived him of his constitutional right to a fair trial.
Specifically, the defendant claims that the prosecutor acted
improperly when she (1) attempted to elicit inadmissible
prior consistent statements made by Murray, (2) asked the
jury during closing argument tospecu-late as to a
conversation that was not in evidence, and (3) argued during
closing argument that, in order for the jurors to determine
that Murray had received a special plea agreement in exchange
for his testimony, they must believe defense counsel's
argument that the state's witnesses were lying. Although
we conclude that some of the prosecutor's actions were
improper, we disagree with the defendant's claim that any
impropriety deprived him of a fair trial.
standard of review on a claim of prosecutorial impropriety is
well established. ‘‘[I]n analyzing claims of
prosecutorial [impropriety], we engage in a two step
analytical process. The two steps are separate and distinct:
(1) whether [impropriety] occurred in the first instance; and
(2) whether that [impropriety] deprived a defendant of his
due process right to a fair trial. Put differently,
[impropriety] is [impropriety], regardless of its ultimate
effect on the fairness of the trial; whether that
[impropriety] caused or contributed to a due process
violation is a separate and distinct question that may only
be resolved in the context of the entire trial . . .
.'' (Internal quotation marks omitted.) State v.
Luster, 279 Conn. 414, 428, 902 A.2d 636 (2006).
‘‘In determining whether prosecutorial
[impropriety] was so serious as to amount to a denial of due
process, this court, in conformity with courts in other
jurisdictions, has focused on several factors. Among them are
the extent to which the [impropriety] was invited by defense
conduct or argument . . . the severity of the [impropriety] .
. . the frequency of the [impropriety] . . . the centrality
of the [impropriety] to the critical issues in the case . . .
the strength of the curative measures adopted . . . and the
strength of the state's case.'' (Citations
omitted.) State v. Williams, 204 Conn. 523, 540, 529
A.2d 653 (1987).
first determine whether the particular conduct was, in fact,
improper. We will then consider whether the totality of the
established improprieties deprived the defendant of a fair
defendant first claims that the prosecutor engaged in
impropriety when, on three occasions, she attempted to elicit
prior consistent statements in violation of a court order.
The following additional facts are relevant to this claim.
first day of trial, outside the presence of the jury, the
prosecutor asked the court whether Murray's second
statement to the police, in which he identified the defendant
as the shooter, would be admissible as a prior consistent
statement. The court responded: ‘‘Well, again,
without finally ruling on that, the answer is not necessarily
because the rule generally is that when a witness is
impeached for a prior inconsistent statement, prior
consistent statements are not normally admissible. They can
be admissible under the discretion of the court,
particularly-and I emphasize particularly- where the
prior consistent statement precedes the prior inconsistent
statement. But, frankly, if following the prior consistent
statement the witness has given a bunch of consistent
statements, that ordinarily does not come in. You know, be
aware of that. The case law is quite clear on that. . . . I
may have, you know, some ultimate discretion, we have to see
what develops, but certainly the answer to what you just said
is not necessarily.'' The court further stated:
‘‘I haven't given my final ruling on this
because I have to see what the witness says on direct,
obviously, but I think you must be aware of the general way
that I look at this so that you are not surprised, and I
think that I have said so.''
days later, on direct examination, the prosecutor addressed
Murray as follows: ‘‘Now, with regard to giving
that statement [to the police] on December 27, which is
essentially what you spoke about today . . . .''
Defense counsel objected, and the court sustained the
objection, noting that ‘‘[t]he contents of the
second interview should not be divulged further than they
already have been without expressed permission of the court.
As you know, there are evidentiary rules pertaining
the prosecutor asked Murray: ‘‘And let me just
ask you this: when you spoke to the police again, what did
you tell them with regard to who was the shooter?''
The court sua sponte excused the jury and addressed the
prosecutor, stating: ‘‘I don't know how many
times I have told you on the record, and, I believe,
explicitly, that consistent statements-prior consistent
statements are not admissible into evidence unless they
precede prior inconsistent statements. . . . I have told you,
with respect to the second interview, on multiple occasions,
multiple occasions do not get into the contents.''
the prosecutor indicated that she did not think that the
court had been explicit in ruling that Murray's prior
consistent statements were inadmissible, the court stated
that ‘‘[u]nder no circumstances without prior
permission of the court must you-may you ask this witness
about any prior consistent statement postdating the original
inconsistent statement of December 6. You may not ask him
about the substance of that without prior permission of the
court, that includes, but is not limited to, his-the
substance of his statement to the police on December 27. I
had thought that I was explicit, but perhaps I was not, and
if so, please forgive me.'' The court continued,
stating: ‘‘I have told you repeatedly not to go