Argued
September 18, 2018
Procedural
History
Substitute
information charging the defendant with three counts of the
crime of murder and with one count of the crime of violating
a standing criminal protective order, brought to the Superior
Court in the judicial district of Hartford and tried to the
jury before Kwak, J.; thereafter, the court denied the
defendant's motion to strike certain testimony; verdict
and judgment of guilty, from which the defendant appealed.
Affirmed.
Lisa
J. Steele, assigned counsel, for the appellant (defendant).
Matthew A. Weiner, assistant state's attorney, with whom,
on the brief, were Gail P. Hardy, state's attorney, and
David L. Zagaja, senior assistant state's attorney, for
the appellee (state).
DiPentima, C. J., and Prescott and Harper, Js.
OPINION
PRESCOTT, J.
The
defendant, Brett B., appeals from the judgment of conviction,
rendered after a jury trial, of three counts of murder in
violation of General Statutes § 53a-54a (a) and one
count of violating a standing criminal protective order in
violation of General Statutes § 53a-223a (a). The
defendant claims on appeal that (1) he was denied his right
to a fair trial because the prosecutor committed
improprieties during closing argument by (a) misrepresenting
to the jury that certain DNA found at the crime scene
belonged to the defendant despite testimony from the
state's DNA expert that the defendant was only a possible
contributor, and (b) misleading the jury regarding foot
impression evidence; and (2) the trial court abused its
discretion by admitting into evidence previously undisclosed
opinion testimony from the state's forensic expert that a
bloodstain found on a tissue at the crime scene appeared to
be caused by a finger rather than by blood spatter, which, if
credited, tended to implicate the defendant as the
perpetrator. We reject the defendant's claims and,
accordingly, affirm the judgment of conviction.
The
jury reasonably could have found the following facts. In the
late 2000s, the defendant lived with his father, A, in a
single-family raised ranch home in East Hartford (East
Hartford home). The defendant grew up in the East Hartford
home and had lived there intermittently during his adulthood.
The main floor of the East Hartford home had two bedrooms
connected by a short hallway leading to the kitchen and
living room, with a bathroom located off that hallway near
the two bedrooms. A third bedroom was located in the
home's finished basement.
In
2009, the defendant's mother, B, moved into the East
Hartford home. B, who was divorced from A, had lived for the
preceding four years with the defendant's sister, C, in
Manchester.[1] Although A and B were civil to each other,
B primarily kept to the main level of the home while A stayed
in the finished basement. While the defendant was living at
the East Hartford house, he occupied one of the two main
floor bedrooms.
On
March 26, 2010, the defendant and B had an altercation that
resulted in the defendant's arrest and an eventual
conviction of a misdemeanor. The defendant moved out of the
East Hartford home and into his sister's house in
Manchester. On May 10, 2010, the court issued a protective
order prohibiting the defendant from assaulting, threatening
or harassing B. The protective order was modified on June 23,
2010, to a full no contact protective order, which prohibited
the defendant from contacting B in any manner or going to her
residence. At the defendant's sentencing, the court again
modified the no contact order to a standing criminal
protective order. See General Statutes § 53a-40e. The
defendant was unhappy with the situation involving his mother
and had remarked to a cousin on one occasion that B
‘‘needed to be dead.''
During
the summer of 2010, A's health deteriorated. He died on
September 15, 2010, leaving B as the sole occupant of the
East Hartford home. The defendant indicated to several people
that he blamed B for A's death and was furious with her.
Despite the criminal protective order in place, B remained
concerned about her safety and believed that her life was in
danger.
Approximately
one month following A's death, B invited Michael Ramsey
and Pamela Johns to move into the basement bedroom of the
East Hartford home. The defendant was angry that B had
allowed Ramsey and Johns to move into the house, referring to
them as ‘‘homeless people.'' Despite the
protective order, neighbors spotted the defendant near the
East Hartford home. On one occasion, a neighbor observed the
defendant get out of the passenger side of a white Nissan
Altima, hide behind a line of bushes, and watch the house. On
another occasion, a different neighbor saw someone fitting
the defendant's description driving a white Nissan
Altima, and then watched him get out of the car and enter a
wooded area behind the East Hartford home. B knew that the
defendant was watching the house, telling a friend on
November 22, 2010, that she was ‘‘worried of the
fact that [the defendant] was roaming around the house . . .
.'' The friend told B to call the police.
A short
time later, sometime between November 23, 2010, and the early
morning hours of Thanksgiving Day, November 25, 2010, B,
Johns, and Ramsey were brutally murdered in the East Hartford
home, each having been struck repeatedly in the head with an
object like a Sheetrock hammer.[2] The bodies were discovered on
Thanksgiving Day by police officers who had been conducting a
wellness check on B at the request of a niece living out of
state. The bodies were all located near one another, with
B's and Ramsey's bodies found in the main floor
bathroom, and Johns' body found just outside that
bathroom in the hallway. There were no signs of forced entry.
The front door of the home was locked, but a rear sliding
glass door was not. Both women were found wearing jewelry.
B's bedroom and the basement bedroom where Ramsey and
Johns were staying had been ransacked, although a purse
containing $1350 in cash was found hidden under B's
bedroom desk. The bedroom that the defendant formerly had
occupied was not disturbed.
A
neighbor and former friend of A's noticed the police
presence on Thanksgiving and contacted the defendant by phone
to inform him that something was happening at the East
Hartford home. The defendant responded to the neighbor that
‘‘maybe they're all poisoned in there, maybe
they're all dead, '' and, ‘‘maybe
they're going to come and blame me for this.''
Investigators
processed the bloody crime scene over the course of seven
days. Among the items that were collected and sent to the
state forensic laboratory for processing were a plastic bag
found behind a bookcase in the defendant's former
bedroom, a checkbook and a cell phone charger found on
B's bed, and a tissue found in the doorway of the
defendant's former bedroom near a piece of skull from one
of the victims. The side of the tissue that was facing out
into the hallway had blood on it. It was later determined
that the blood and skull fragment belonged to Ramsey, but
another portion of the tissue contained dried mucous or
saliva connected to the defendant through DNA. Bloody foot
impressions that were made by socked feet were discovered in
the kitchen and photographed for further analysis.
Because
of the domestic complaints by B against the defendant and C,
they were identified immediately by the police as possible
suspects. The day the bodies were found, the police executed
a warrant to search the defendant's person. The defendant
had visible marks on his body, including what appeared to be
scratches and an injured toe. During the course of the
investigation, the police also obtained and executed a search
warrant for a white Nissan Altima that was registered to
C's daughter, who lived with C and the defendant. The
warrant was executed on January 6, 2011, at the East Hartford
home. When police informed C, who had driven the vehicle to
the East Hartford home that day, that they were seizing the
vehicle pursuant to a warrant, C asked if she could remove
some items from the trunk of the car. Specifically, she
sought to retain possession of two cell phones and chargers
that she indicated to police belonged to Johns and Ramsey.
She was not allowed to remove the items, and was questioned
by the police as to where she had obtained those phones. C
indicated that she had found them that same day in the
basement bedroom, but, when pressed, claimed she could not
remember where in the room she found them. The phones never
yielded any useful information to the investigation.
During
the pendency of the criminal investigation into the murders,
the defendant became incarcerated on an unrelated drug
charge. While in prison, he had a conversation in the
prison's dayroom with another inmate, William McCauley.
McCauley told the defendant that he was serving a sentence
for vehicular manslaughter, after which the defendant asked
McCauley if he had killed a close friend. McCauley indicated
that he had killed his best friend and that he still had
dreams about the incident. The defendant responded that he
had ‘‘similar dreams'' and that, although
he was in prison on a drug charge, the authorities were
‘‘trying to get him for a triple homicide around
Thanksgiving time.'' McCauley's cellmate, Rocco
Strazza, who was also in the dayroom at the time the
defendant spoke with McCauley, claimed that he overheard the
defendant say that he was ‘‘the one who did the
triple homicide.''
The
defendant eventually was charged with three counts of murder
and with one count of violating a standing criminal
protective order. The defendant's first trial ended in a
mistrial. He was tried a second time, and the jury in the
second trial returned a guilty verdict on all charges. The
court, Kwak, J., sentenced the defendant to
a total effective term of 180 years of incarceration, with a
mandatory minimum sentence of seventy-five years of
incarceration. This appeal followed. Additional facts will be
set forth as necessary.
I
The
defendant first claims that, during closing and rebuttal
arguments, the prosecutor improperly mischaracterized or
overstated portions of the forensic evidence and that those
improprieties deprived the defendant of his right to a fair
trial. More particularly, the defendant claims that the
prosecutor misstated or exaggerated the significance of (1)
certain DNA evidence collected from items at the crime scene
and (2) bloody foot impressions found in the kitchen. Because
we do not agree that any of the challenged remarks were
improper, we reject the defendant's claim.
We
begin by noting that the defendant concedes that he did not
object at trial to any of the remarks he now challenges on
appeal. As our Supreme Court has explained, however, this is
not fatal to a prosecutorial impropriety claim. See State
v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626
(2004). ‘‘This does not mean, however, that the
absence of an objection at trial does not play a significant
role in the determination of whether the challenged
statements were, in fact, improper. . . . To the contrary, we
continue to adhere to the well established maxim that defense
counsel's failure to object to the prosecutor's
argument when it was made suggests that defense counsel did
not believe that it was [improper] in light of the record of
the case at the time.'' (Internal quotation marks
omitted.) State v. Maner, 147 Conn.App. 761, 782, 83
A.3d 1182, cert. denied, 311 Conn. 935, 88 A.3d 550 (2014).
This is particularly true if, as in the present case, a
defendant claims prosecutorial impropriety stemming from a
prosecutor's discussion of DNA evidence. Such discussions
require precise and nuanced distinctions in nomenclature that
easily may be misconveyed or misunderstood, especially in
light of the zealous advocacy that is part and parcel of a
closing argument. If a prosecutor's arguments do not
portray accurately the DNA evidence as it was presented to
the jury or stray too far from reasonable inferences that may
be drawn from such evidence, a contemporaneous objection by
defense counsel would permit any misstatements, whether
inadvertent or intentional, to be remedied immediately.
‘‘The
standard we apply to claims of prosecutorial impropriety is
well established. 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. Whether that impropriety was harmful
and thus caused or contributed to a due process violation
involves a separate and distinct inquiry. . . . [If] a
defendant raises on appeal a claim that improper remarks by
the prosecutor deprived the defendant of his constitutional
right to a fair trial, the burden is on the defendant to show
. . . that the remarks were improper . . . .''
(Internal quotation marks omitted.) State v. Grant,
154 Conn.App. 293, 319, 112 A.3d 175 (2014), cert. denied,
315 Conn. 928, 109 A.3d 923 (2015). The defendant also has
the burden to show ‘‘that, considered in light of
the whole trial, the improprieties were so egregious that
they amounted to a denial of due process.'' State
v. Payne, 303 Conn. 538, 563, 34 A.3d 370
(2012).[3]
Certainly,
‘‘prosecutorial [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. . . .
‘‘While
the privilege of counsel in addressing the jury should not be
too closely narrowed or unduly hampered, it must never be
used as a license to state, or to comment upon, or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider.''
(Emphasis added; internal quotation marks omitted.) State
v. Ciullo, 314 Conn. 28, 37-38, 100 A.3d 779 (2014).
‘‘A prosecutor may invite the jury to draw
reasonable inferences from the evidence; however, he or she
may not invite sheer speculation unconnected to evidence. . .
. Moreover, when a prosecutor suggests a fact not in
evidence, there is a risk that the jury may conclude that he
or she has independent knowledge of facts that could not be
presented to the jury.'' (Citations omitted.)
State v. Singh, 259 Conn. 693, 718, 793 A.2d 226
(2002). Because ‘‘[t]he prosecutor's office
carries a special prestige in the eyes of the jury . . . [i]t
is obligatory for prosecutors to find careful ways of
inviting jurors to consider drawing argued inferences and
conclusions and yet to avoid giving the impression that they
are conveying their personal views to the jurors.''
(Citations omitted; internal quotation marks omitted.)
Id., 722. With these principles in mind, we turn to
whether the prosecutor's challenged remarks in the
present case were improper.
A
The
defendant first contends that the prosecutor
mis-characterized the DNA evidence by arguing to the jury
that the defendant's DNA was found on several pieces of
evidence, which, according to the defendant, did not
accurately reflect the testimony of the state's own
expert. The defendant's claim focuses on what he
characterizes as misstatements about DNA collected from three
pieces of evidence: the checkbook found on B's bed, the
phone charger located nearby, and the handles of the
bloodstained plastic bag found stuffed behind a bookcase in
the defendant's former bedroom. The defendant argues
that, with respect to those items, the state's expert
testified that the defendant only was a possible contributor,
and that other male relatives who shared the same Y
chromosome, a group that included the defendant's father,
A, could have accounted for those results. The defendant
notes that the misstatement was particularly significant in
this case because both the defendant and A had lived in the
East Hartford house and, thus, could have deposited DNA prior
to the murders, and there was no evidence presented at trial
establishing when the DNA at issue had been deposited or how
long it could have been present on the items.
The
state responds that the prosecutor's challenged remarks
were supported by the testimony of its expert and that it was
not unreasonable or improper for the prosecutor to urge the
jury to infer, in light of the evidence as a whole, that it
was the defendant's DNA that was found rather than the
DNA of his father, who had died two months prior to the
murders. On the basis of our review of the entirety of the
closing arguments, we conclude that the prosecutor's
remarks were not improper.[4]
The
following additional facts are relevant to this claim. Cheryl
Carreiro, a DNA analyst from the state forensic laboratory,
testified for the state regarding the results of DNA analysis
that she performed on biological samples collected at the
crime scene or later obtained from items collected at the
crime scene. She prepared a number of reports that were
admitted through her as full exhibits. During direct
examination, she indicated that she had compared DNA profiles
derived from the crime scene biological samples with DNA
profiles derived from known samples obtained from the three
victims and the defendant. She also provided statistical data
regarding possible contributors to the various DNA profiles
she developed from those samples.
Carreiro
performed two types of DNA tests on samples collected in this
case: an ‘‘Identifiler'' test, which
looks at both male and female DNA, and a
‘‘Yfiler'' or Y-STR DNA test that only
looks for male DNA and, thus, can be useful in analyzing
mixed biological samples that contain large amounts of female
DNA masking trace amounts of male DNA. See State v.
Phillips, 160 Conn.App. 358, 125 A.3d 280, cert. denied,
320 Conn. 903, 127 A.3d 186 (2015). Relevant to the
defendant's claim on appeal, Carreiro provided testimony
about the DNA profiles developed from the biological samples
taken from the checkbook, the phone charger, and the plastic
bag handles.
With
respect to the checkbook, Carreiro indicated that biological
samples were taken from the checkbook's exterior and
interior cover, the top check, and the edges of the checks.
When asked to describe the results of DNA testing of those
samples, Carreiro first indicated that both the Identifiler
and Yfiler results demonstrated that the biological samples
taken from the checkbook resulted in a ‘‘mixed
sample.''[5] With respect to the three victims, only B
was found to be a contributor to the Identifiler profile.
Johns and Ramsey were eliminated as contributors. Carreiro
testified that the defendant could not be eliminated as a
contributor to the Identifiler profile. She explained that
‘‘the expected frequency of individuals who
cannot be eliminated as a contributor . . . is approximately
one in 10, 000 in the African-American population,
approximately one in 880 in the Caucasian population, and
approximately one in 3400 in the Hispanic
population.'' Carreiro described the Yfiler results
as ‘‘inconclusive as to whether [the defendant]
could be a contributor to the Yfiler DNA profile.''
The
prosecutor then asked Carreiro the following follow-up
question without any objection from defense counsel:
‘‘On the Identifiler, however, in comparison to
the known sample of [the defendant], on the swabbing of the
checkbook . . . is it fair to say that you identified a
partial profile consistent with that of him?''
Car-reiro responded: ‘‘Yes. He cannot be
eliminated as a contributor, and that is a partial
match.'' Turning to the result of the DNA analysis of
biological samples taken from the cell phone charger,
Carreiro testified that this also resulted in a
‘‘mixed sample.'' The Identifiler profile
yielded inconclusive results as to whether the defendant
could be a contributor. With respect to the Yfiler results,
Carreiro indicated that ‘‘[the defendant] or
another member of the same paternal lineage cannot be
eliminated as a contributor, '' and
‘‘[t]he expected frequency of individuals who
cannot be eliminated as a contributor to the Yfiler . . . is
approximately one in forty-three in the African-American
population, approximately one in eighteen in the Caucasian
population, and approximately one in thirty-six in the
Hispanic population.'' When asked in a follow-up
question whether she had ‘‘developed a partial
DNA profile consistent with that of [the defendant]on the Y
profiler, '' Carreiro answered: ‘‘The
Yfiler was-was a partial result, and it was, cannot be
eliminated.''
Multiple
biological samples were taken from the white plastic bag. One
sample was taken from visible reddish brown stains on the bag
that were identified as human blood. Additional samples were
taken from the interior and exterior handles of the plastic
bag. Regarding the samples taken from the handles, Carreiro
testified that this was a ‘‘mixed
sample.'' Ramsey and B were both included as
contributors to the Identifiler profile, and Johns could not
be eliminated as a contributor. According to Carreiro, the
defendant also is ‘‘included as a
contributor'' to the Identifiler profile, and
‘‘[the defendant] or another member of the same
paternal lineage is included as a contributor to the Yfiler
DNA profile.'' The expected frequency of individuals
who could be a contributor to both the Identifiler and Yfiler
profiles is ‘‘approximately one in seven million
in the African-American population, approximately one in 880,
000 in the Caucasian population, and approximately one in 4.2
million in the Hispanic population.''
The
prosecutor asked Carreiro about a summary table she had
included in her report regarding the swabbing of the
bag's interior and exterior handle. In particular, he
inquired whether she had identified ‘‘the full
profile of three individuals and the partial profile of
[Johns].'' Carreiro responded: ‘‘Yes. The
. . . first inclusion is [Ramsey], the second is [B]. The
third cannot be eliminated, [Johns], and the fourth [the
defendant].'' On cross-examination, defense counsel
elicited testimony from Carreiro that the defendant's
father, A, was ‘‘another member of the same
paternal lineage'' and would have the same Y-STR
profile as the defendant.
During
closing argument, the prosecutor set forth the state's
theory of the case and, in that context, made the following
statements regarding the DNA evidence, including statements
challenged by the defendant, which are emphasized:
‘‘Answer the $20, 000 question then. How does
[the defendant's] DNA end up on items in the house when
he hasn't been there in about six months? We know the
answer. This is the tissue as it was found in the doorway of
his bedroom next to what appeared to be a piece of a skull.
The tissue was recovered and photographed by the state
forensics lab. You see a large amount of blood in this
picture, and you see at the other end of the tissue what was
described as a yellowish mucous-like item consistent with
mucous, tested positive for the presence of amylase. In place
and in time, the defendant is connected to one of the
victims. And not one of the victims innocently with touch
DNA, with bloodshed. The blood on that tissue is that of
[Ramsey]. The remnants of blood on his nose, DNA's back
to [the defendant].
‘‘[The
defendant], I would claim, ladies and gentlemen, who is
covered in blood, and he blew his nose. And look at the back
of that tissue. The back of the tissue is actually more
evidence of blood, consistent with transfer or smearing. In a
vacuum, as the lab people will say, when you get that
material and put it in a test tube and get someone's DNA,
they can't look at the DNA and date it. They can't
look at the DNA and say, I can tell you when it was deposited
on an item such as the Kleenex. But what you ladies and
gentlemen know from the evidence is, the defendant blew his
nose, and his bloody face and/or hands had blood [on] them,
which passed over to that Kleenex. There's no way around
it. And you know what? That's the first of the items.
‘‘This
is a picture of [B]'s room and [B]'s bed. You'll
notice on the bed is a cell phone with a charger attached to
it, a checkbook with checks inside it, and another set of
checks next to it, seized. But let's not go to the lab
yet, ladies and gentlemen. Let's look at what you see
here because you know why, that's important. And if
we're all on board that the attack happened at night, is
[B] sleeping with her checks and her checkbook and her phone
not plugged in, yet plugged into the phone itself, the
charger, and what appears to be a tin of Altoids that [a
detective] described? No. Those items were deposited and
thrown and put on the bed close in time to when the attack
happened. That's what's important to understand. This
is where you use your common sense.
‘‘And
let's go to the results of the analysis conducted on
those items. [The defendant], in a partial DNA
profile, is found on the wall end portion of the charger of
that phone. And on the checkbook, [the forensic
examiner] examined the checkbook. And from swabbing the blue
section of the checkbook and top of the checks and the edges,
she came up with-you have the reports-[B]
obviously was on this checkbook. But who else was on this
checkbook? In a partial profile, [the
defendant].
‘‘Let's
get to time and place, ladies and gentlemen. The
defendant, who hasn't been in the house since at least
June, 2010, though he claims back to March, 2010, this check
is dated November 15, 2010, and there are no additional
written checks from the checks in here. The register itself
starts recording back in August 11th. This, ladies and
gentlemen, dates the DNA.
‘‘And
the bag, again, from the starting point that [the defendant]
is not in that house, a bag stuffed behind a bookcase in his
room. You'll remember that the doorway is over here. It
made entire sense when [the detective] said she can't
imagine, based on her training and experience, that blood on
that bag came from cast-off or spatter from the attack that
happened in the hallway. Hey, and let's face it, we saw
the photos. There was blood everywhere. So, literally, you
saw it proof positive the blood flew everywhere, but what the
blood didn't do is, it didn't take corners.
‘‘And
there virtually was no way that the blood found on that bag,
which was [B]'s blood, came as cast-off or spatter. It
was deposited there by someone who was bloody. And you know
who that bloody person was? [The defendant]. Ladies and
gentlemen, we have the trifecta in that bag. You saw the
picture from the lab. You've seen what looked like
kitchen bags, if they come either folded in a box or rolled
up in a roll. This bag appeared to have been opened at one
time. Is it part of the cleanup process, ladies and
gentlemen? But the swabbing at the top of the bag has DNA
profiles of all four people involved: the three victims
and [the defendant].
‘‘Now,
[the defendant] arguably never had contact with [Johns] or
[Ramsey]. They moved in somewhere in October, and he
hadn't been in the house for about six or seven months by
then. Or was he? There's no way around it, ladies and
gentlemen. In time and in place, the DNA results tell you a
story.
‘‘I
touched already on the bag. The bag speaks to evidence of
someone making some attempt at cleaning up. Look at the
entire scene. Look at what was presented to you from the
scene. We have a virtual bloodbath in the hallway and the
bathroom where the three victims were found.
‘‘Questions
were asked of detectives, and, I think, of some of the
forensic analysts at the lab as to the likelihood that the
attacker would be covered with blood. Yes. Yes. And the
simple answer to that is, look at the exterior of the house.
There's not a lot of blood outside. There were one or two
drops. One right outside the slider and then one on the
stairs.
‘‘It
answers a question. The attacker stayed in that house,
changed clothes, bagged up bloody items, cleaned himself
before he exited because if we're to assume that a
bloodied attacker left through one of those doors without
doing any of that, then you would've had a blood trail,
and you don't.'' (Emphasis added.)
The
prosecutor also briefly revisited the DNA evidence in his
rebuttal argument, stating: ‘‘For you, as you
assess this evidence, it makes it easier for you because not
one of these items of evidence stands alone. Collectively,
they paint a picture as to who the killer is. And again,
the entirety of the checkbook, which spans from August to
November, the defendant isn't, shouldn't, and per his
own words, wasn't in that house. And the most compelling
piece of evidence is that bag. That bag, which has the DNA of
every individual involved in this crime, the three victims
and the defendant.'' (Emphasis added.)
The
defendant argues that the emphasized portions of the
prosecutor's arguments sought to mislead the jury by
asserting facts not in evidence, which is improper. State
v. Singh, supra, 259 Conn. 718. With respect to the
checkbook, the defendant claims that the prosecutor's
statement that his DNA was found ‘‘[i]n a partial
profile'' was misleading because, to the extent that
the statement referred to the Yfiler profile, the
defendant's DNA could not be distinguished from A, who
was living at the East Hartford home until mid-September,
2010, after the checkbook began to be used in August, 2010.
The defendant argues that the prosecutor also misstated the
DNA results with respect to the cell charger by indicating
that the defendant's DNA was found ‘‘in a
partial DNA profile.'' The defendant asserts that
this was incorrect because Carreiro had testified that the
Identifiler profile was inconclusive as to the defendant and
that the Yfiler had indicated only that the defendant or a
member of the same parental lineage could not be eliminated
as a contributor. Finally, with respect to the bag handles,
the defendant notes that Carreiro testified that
‘‘[the defendant] or another member of the same
paternal lineage is included as a contributor'' to
the Yfiler profile, whereas the prosecutor stated in closing
argument and rebuttal that the mix sample obtained from the
bag included DNA from the defendant.
‘‘We
long have held that a prosecutor may not comment on evidence
that is not a part of the record and may not comment unfairly
on the evidence in the record.'' State v.
Fauci, 282 Conn. 23, 49, 917 A.2d 978 (2007).
‘‘It is not, however, improper for the prosecutor
to comment upon the evidence presented at trial and to
argue the inferences that the jurors might draw
therefrom . . . .'' (Emphasis added; internal
quotation marks omitted.) State v. Gibson, 302 Conn.
653, 660, 31 A.3d 346 (2011). We previously have held that,
if the evidence presented at trial is that the defendant is
included as a contributor to a DNA profile, then it is not
necessarily improper for a prosecutor to argue to a jury
during closing argument that the DNA found was the
defendant's as long as that is a reasonable inference to
be drawn in light of the evidence as a whole. See State
v. Jones, 115 Conn.App. 581, 597-600, 974 A.2d 72, cert.
denied, 293 Conn. 916, 979 A.2d 492 (2009). We see no reason
why this same principle would not also apply to instances in
which the defendant could not be eliminated as a contributor.
See State v. Small, 180 Conn.App. 674, 687-88, 687
n.3, 184 A.3d 816 (finding claim unpreserved but observing in
dicta that it was not improper for prosecutor to invite jury
to draw inference that defendant's DNA was on mop handle
in light of expert testimony that he could not be eliminated
as contributor), cert. denied, 328 Conn. 938, 184 A.3d 268
(2018). In either instance, the defense was not precluded
from arguing that the inconclusive nature of the DNA evidence
left reasonable doubt about the defendant's guilt on the
basis of the statistical probabilities presented.
Here,
the prosecutor's statements regarding the DNA evidence
were made in the context of his setting forth the state's
theory of the case, and much of the prosecutor's closing
argument focused on the evidence other than DNA that tended
to support the theory that the defendant had committed the
murders. It would have been clear to the jury that if
evidence tended to demonstrate that the defendant was a
possible contributor to a DNA profile, the state was asking
the jury to draw every reasonable inference to conclude that
it was, in fact, the defendant's DNA that was found, and
not that of another possible contributor. The jury had heard
Carreiro's testimony and was able to evaluate the
state's closing arguments in light of its own
understanding of that testimony, which also included
statistical evidence about the likelihood that the
defendant's DNA was the source of the profiles developed
from the crime scene evidence. The defendant's argument
with respect to the checkbook, which focuses on the Yfiler
profile, also misses the mark because it ignores the fact
that Carreiro testified that the defendant could not be
eliminated as a contributor and, thus, ‘‘was a
partial match, '' with respect to the Identifiler
profile. Further, although it may be accurate with respect to
the charger and bag to note that the Yfiler results indicated
that both the defendant and A were possibly contributors to
the DNA found on those items, the prosecutor properly asked
the jury not to look at the results of each item
individually, but to view all the evidence presented
collectively in order to ‘‘paint a picture as to
who the killer is.'' In other words, the prosecutor
was asking the jury to infer from the totality of the
evidence presented, including all the nonscientific evidence,
that in those instances in which there were multiple
possibilities as to the source of the DNA, the defendant was
the far more likely contributor.
It was
not necessary for the jury to have found that the state had
proven beyond a reasonable doubt that the DNA in question
belonged to the defendant in order properly to use that
evidence, in conjunction with other evidence, to assess
whether the state had met its burden of proving beyond a
reasonable doubt that it was the defendant who had committed
the murders. Although the state has the burden to prove
beyond a reasonable doubt all elements necessary for the
commission of a crime, including identity, subordinate facts,
such as whose DNA was present on a particular item of
evidence, may be established by inference or circumstantial
proof and need not be established beyond a reasonable doubt.
See State v. McDonough, 205 Conn. 352, 355, 533 A.2d
857 (1987) (‘‘[if] a group of facts are relied
upon for proof of an element of the crime it is their
cumulative impact that is to be weighed in deciding whether
the standard of proof beyond a reasonable doubt has been met
and each individual fact need not be proved in accordance
with that standard''), cert. denied, 485 U.S. 906,
108 S.Ct. 1079, 99 L.Ed.2d 238 (1988).
The
prosecutor never stated that the defendant's DNA was
found on any item from which he had been eliminated as a
possible contributor to the DNA profile, which would have
been improper. To the extent that the prosecutor may have
used imprecise language or terminology, the defendant had
ample opportunity to object and to correct any perceived
misstatement but elected not to do so, suggesting that he did
not believe at the time that the remarks warranted such
intervention. When considered within the context of the
state's entire argument and allowing some leeway for
zealous advocacy, as we must, we cannot conclude that the
prosecutor made any statements that reasonably can be viewed
as improper under the circumstances or that the jury likely
was misled by the prosecutor's arguments.[6]
B
We next
turn to the defendant's contention that the prosecutor
engaged in prosecutorial impropriety by misleading the jury
about the significance of bloody foot impressions found at
the crime scene. We are not persuaded that the
prosecutor's remarks were improper.
The
following additional facts are relevant to our consideration
of this aspect of the defendant's prosecutorial
impropriety claim. At trial, the state called as a witness
Lisa Ragaza, a state forensic science examiner specializing
in the analysis of imprints. She testified about comparisons
that she made between the foot impressions found in the
kitchen at the crime scene and known foot impressions the
East Hartford Police Department later obtained from the
defendant. She testified that the impressions from the crime
scene were consistent in size and shape with the known foot
impressions of the defendant. She also testified that both
the crime scene impression and the known impression of the
defendant exhibited a common characteristic, a
‘‘swiping motion'' in the big toe area of
the impression. The defendant did not object to this
testimony.[7]
As to
her final conclusions, Ragaza testified as follows on direct
examination by the prosecutor:
‘‘Q. Now, Ms. Ragaza, you're not here, or,
tell me, yes or no, are you capable of saying the known
impressions that were submitted by the East Hartford Police
Department-so I'll hold up a transparency. The known
impressions by the East Hartford Police Department, the
person who made those actually made what was submitted from
the crime scene.
‘‘A. No, I cannot.
‘‘Q. And why not?
‘‘A. There's no individual characteristics
present in the imprints from the crime scene that would allow
me to make an identification or an individualization as to
who made those imprints.
‘‘Q. Okay. However, based on your examination,
you are of the conclusion that they are consistent in size
and shape?
‘‘A. Uh, yes.
‘‘Q. Let me ask you. I want to ask you to-in
reviewing all of the prints from the crime scene with these
photographs that look to be coming off of linoleum, for lack
of a better word, did you ...