Argued
April 10, 2018
Procedural
History
Substitute
information charging the defendant with the crimes of felony
murder, burglary in the first degree and criminal possession
of a firearm, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before Blue,
J.; verdict and judgment of guilty, from which the
defendant appealed. Affirmed.
Lisa
J. Steele, assigned counsel, for the appellant (defendant).
Robert
J. Scheinblum, senior assistant state's attorney, with
whom were Stacey M. Miranda, senior assistant state's
attorney, and, on the brief, Patrick J. Griffin, state's
attorney, and Karen A. Roberg, assistant state's
attorney, for the appellee (state).
Lavine, Elgo and Bright, Js.
OPINION
LAVINE, J.
The
defendant, Nicholas J. Papantoniou, appeals from the judgment
of conviction, rendered following a jury trial, of felony
murder in violation of General Statutes § 53a-54c,
burglary in the first degree in violation of General Statutes
§ 53a-101 (a) (1), and criminal possession of a firearm
in violation of General Statutes § 53a-217 (a) (1). On
appeal, the defendant claims that the state (1) violated his
rights to be present at trial and to confront the witnesses
against him under article first, § 8, of the Connecticut
constitution[1] when the prosecutor made a
‘‘generic tailoring'' argument during
closing remarks, and (2) violated his constitutional rights
to due process and a fair trial by committing prosecutorial
improprieties. We affirm the judgment of the trial court.
The
following facts, which the jury reasonably could have found,
and procedural history are relevant to this appeal. At
approximately 12:30 p.m. on October 19, 2014, William
Coutermash[2] drove to 397 Circular Avenue in Hamden;
the defendant accompanied him. Larry Dildy, the victim, lived
in the second floor apartment of a multifamily house located
at 397 Circular Avenue with his wife, Vivian Dildy (Vivian),
and their daughter, Ashante Dildy (Ashante). The victim was a
known drug dealer, and according to Coutermash, he and the
defendant went to the victim's apartment with the intent
to rob him.[3] More specifically, Coutermash said the
plan was to ‘‘flash a gun in the [victim's]
face'' in an attempt to ‘‘get either
drugs or money'' from him.
When
Coutermash and the defendant arrived, Coutermash parked his
vehicle-a black Jeep with New York license plates-near the
victim's driveway and handed the defendant gloves and a
handgun. According to Coutermash, the defendant then exited
the vehicle ‘‘to get drugs or money'' and
also was armed with a knife.[4] The defendant, who was wearing a
gray sweatshirt, a tan hat, and sunglasses, then proceeded to
the back door of the victim's apartment. Coutermash
testified that he stayed in his Jeep.
Vivian
was home at the time, and according to her, one
‘‘intruder'' entered the apartment
through the apartment's locked back door after the force
of his knocking opened it. She described the intruder as
wearing a grey ‘‘sweat jacket'' and a
yellow or beige hat. Shortly thereafter, Vivian saw the lone
intruder pointing a gun at the victim, heard him say
something that ‘‘sounded like give it up,
'' and called 911 at her husband's request.
Ashante, who was hiding in her room when the intruder entered
the apartment, also heard a single,
‘‘raspy'' male voice say that
‘‘he needed the $400 and the pill, '' and
overheard her father respond that ‘‘[he]
didn't have it.'' After the victim and the
intruder argued for a period of time, a physical fight
ensued, and the two men struggled over the intruder's
gun. During the struggle, the victim pulled off the
intruder's sweatshirt, and Vivian struck the intruder
over the head with a broom handle before she ran to a
separate room. Vivian then heard two gunshots, [5]and the intruder
quickly fled the apartment.
Minutes
after the defendant had exited the Jeep, Coutermash observed
emergency personnel arriving and decided to drive away from
the area. As he did so, he encountered the defendant on a
nearby street, picked him up, and the two left the scene. The
victim had been shot, cut, and stabbed multiple times during
the altercation; he was taken to a hospital and died from his
injuries.
During
the ensuing police investigation, investigators recovered
various items located on the floor near the victim's
body, including a grey hooded sweatshirt, a tan hat,
sunglasses, and a knife. Subsequent scientific testing
revealed that DNA[6] evidence taken from the grey sweatshirt
matched the defendant's DNA profile, which was contained
in a national database of DNA.[7] That same testing eliminated
Coutermash as a source of the DNA found on the grey
sweatshirt. Scientific testing of the tan hat also revealed
the presence of both the defendant's and the victim's
DNA.[8]
Finally, surveillance cameras near the victim's apartment
captured the defendant discarding gloves and a handgun
shortly after the shooting.[9]
By way
of an amended long form information, the state charged the
defendant with felony murder, burglary in the first degree,
and criminal possession of a firearm.[10] Following the
jury's verdict of guilty on all counts, the trial court
rendered judgment and sentenced the defendant to a term of
imprisonment of forty-five years on the felony murder
conviction, a concurrent sentence of twenty years
imprisonment on the burglary conviction, and a concurrent
sentence of ten years imprisonment on the criminal possession
of a firearm conviction, for a total effective sentence of
forty-five years imprisonment. This appeal followed.
Additional facts and procedural history will be set forth as
necessary.
I
We
first address the defendant's claim that the state
violated his rights to be present at trial and to confront
the witnesses against him. He argues that the state violated
these specific constitutional rights when the
prosecutor made a ‘‘generic
tailoring''[11] argument during closing remarks to the
jury. He concedes that the state is permitted to make such an
argument under the federal constitution, [12] but according
to him, the state may not do so in accordance with article
first, § 8, of the Connecticut
constitution.[13] He did not assert this claim at trial
and therefore raises it under the familiar rubric of
State v. Golding, 213 Conn. 233, 239-40,
567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015). In response, the
state contends that the defendant's unpreserved
constitutional claim fails to satisfy both the third and
fourth prongs of Golding. Because we conclude that
the alleged constitutional violation, if any, was harmless
beyond a reasonable doubt, we agree that the defendant's
claim fails to satisfy Golding's fourth
prong.[14]
The
following additional facts and procedural history are
relevant to this claim. The defendant testified at trial and
was the final witness called by the defense. His testimony,
in certain respects, conflicted with Coutermash's
testimony. According to Coutermash, the victim did not owe
him money, and he remained in his Jeep when the defendant
went to the victim's apartment. The defendant testified
that, on October 19, 2014, Coutermash told him that he needed
to ‘‘collect some money'' from someone.
See footnote 3 of this opinion. In contrast to Coutermash,
the defendant claimed that when he and Coutermash arrived at
397 Circular Avenue, both of them entered the victim's
apartment, and Coutermash demanded $400 from the victim. The
defendant testified that he entered the victim's
apartment only after Coutermash and the victim began fighting
and when things were ‘‘getting out of control . .
. .'' Upon entering the apartment, the defendant told
the victim: ‘‘[L]isten, just give [Coutermash]
his money- you know-let me get the hell out of here, just
give him what you owe him, it's gone far enough, it's
out of control, just give him his money, you know.''
The defendant further testified that, immediately after he
told the victim to give Coutermash money, Coutermash fled the
apartment. At that point, the defendant claimed that the
victim charged at him, the two began to struggle over the gun
in his hand, and the gun ‘‘went off''
twice during the struggle.
During
closing argument, counsel for the defendant began by stating
that ‘‘this case . . . comes down to two
witnesses, really, [the defendant] and [Coutermash]. They
told two divergent stories, and the state told you that
they're relying on . . . Coutermash.'' Counsel
for the defendant also argued in relevant part:
‘‘Now, we talked a little about this a little
while ago, that is, that the state goes second. I have to do
my best to anticipate their arguments. The state is very
creative; I'm sure I will not think of everything
they're going to think of. So, here's some food for
thought. They may argue that [the defendant] is trying to
save himself by concocting this story. My response to that
is, refer back to the undisputed evidence. Which version is a
concoction, and which one is closer to reality, based on the
evidence?''
The
prosecutor then opened her rebuttal argument by stating in
relevant part: ‘‘So, the defendant wants you to
believe-or disbelieve every single thing you heard, except
the defendant. Disbelieve all of it, and certainly ignore the
actual eyewitness to this because her version doesn't fit
what we're trying to do here. Her version doesn't fit
what we're trying to tell you.
‘‘Keep
in mind, the defendant has had access to all of the evidence,
all of the testimony, all of the photographs, every single
piece of information that was presented to you,
[and] the defendant was able to sit there and
listen to and come up with his version.
‘‘The
defense attorney asked all of you on voir dire, and he just
asked you again, whether you believe that someone can lie to
gain a benefit. Do you? You all said yes. Who has the biggest
benefit to gain here at this moment? Don't you find it
very convenient that the defendant's story is that he was
just a mere bystander in all of this? He was forced to come
up by [Coutermash], his friend, who just wanted him to have
his back, so he did. . . .
‘‘He
attempts to create a story that fits all of the evidence, and
his attempts at that you can't deny is flawed. He gets an
A for effort, but it's not going to work because the
evidence shows you that this version makes zero
sense.'' (Emphasis added.)
The
defendant contends that the prosecutor's remarks during
rebuttal amounted to a ‘‘generic
tailoring'' argument that violated his state
constitutional rights. He seeks review of his unpreserved
state constitutional claim under State v.
Golding, supra, 213 Conn. 233. ‘‘[A]
defendant can prevail on a claim of constitutional error not
preserved at trial only if all the following
conditions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate
harmlessness of the constitutional violation beyond a
reasonable doubt. In the absence of any one of these
conditions, the defendant's claim will fail. The
appellate tribunal is free, therefore, to respond to the
defendant's claim by focusing on whichever condition is
most relevant in the particular circumstances.''
(Emphasis in original; footnote omitted.) Id.,
239-40.
Even if
we assume, without deciding, that the defendant could meet
the factors set forth in State v. Geisler,
222 Conn. 672, 684-86, 610 A.2d 1225 (1992), to demonstrate
that the alleged constitutional violation occurred; see
footnote 13 of this opinion; we nevertheless conclude that
the state has proved that the alleged constitutional
violation was harmless beyond a reasonable doubt.
‘‘[T]here may be some constitutional errors which
in the setting of a particular case are so unimportant and
insignificant that they may, consistent with the [f]ederal
[and state] [c]onstitution[s], be deemed harmless, not
requiring the automatic reversal of the conviction. . . . The
state has the burden to prove that this error was harmless
beyond a reasonable doubt. . . . The focus of our harmless
error inquiry is whether the state has demonstrated that the
otherwise improper comments did not influence the outcome of
the trial.'' (Citations omitted; internal quotation
marks omitted.) State v. A. M., 324 Conn.
190, 204, 152 A.3d 49 (2016); see also State v.
Cassidy, 236 Conn. 112, 129, 672 A.2d 899
(impermissible ‘‘generic tailoring''
argument subject to harmless error), cert. denied, 519 U.S.
910, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996), overruled in part
on other grounds by State v. Alexander, 254
Conn. 290, 299-300, 755 A.2d 868 (2000).
The
state argues that the alleged violation was harmless because
the ‘‘overwhelming evidence of guilt
[demonstrates] there is no reasonable doubt that the jury
would have convicted the defendant of all three
offenses-felony murder, burglary, and criminal possession of
a firearm-with or without the prosecution's [generic]
tailoring argument during rebuttal.'' We agree that
the strength of the state's case against the defendant,
standing alone, renders the alleged error harmless beyond a
reasonable doubt.[15]
Having
thoroughly reviewed the record, we do not believe that the
prosecutor's alleged ‘‘generic
tailoring'' argument had any discernible effect on
the outcome of the trial. The state presented an overwhelming
case against the defendant.[16] The DNA evidence and testimony
from both Coutermash and the defendant demonstrate that the
defendant was involved in the victim's death. In fact,
the defendant concedes on appeal that ‘‘[t]he
evidence supports a conclusion that [he] was in the apartment
and held the pistol while struggling with [the victim] when
it fired twice.''
According
to Coutermash, on October 19, 2014, the two men intended to
rob the victim of either drugs or money by flashing a gun in
his face. The defendant also testified that he
‘‘was looking to get a few bucks'' when
he traveled with Coutermash to the victim's apartment.
See footnote 3 of this opinion. The defendant's testimony
regarding what occurred on October 19, 2014, differed from
Coutermash's account, as the defendant said that
both he and Coutermash entered the victim's
apartment. Nevertheless, the defendant testified that he told
the victim to ‘‘just give [Coutermash] his money
. . . just give him what you owe him . . . .'' after
the defendant had entered the victim's apartment with a
gun in his hand. Under either version of events-the
defendant's or Coutermash's-the jury ...