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State v. Papantoniou

Court of Appeals of Connecticut

September 25, 2018

STATE OF CONNECTICUT
v.
NICHOLAS J. PAPANTONIOU

          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 ...


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