Argued
September 5, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of murder,
possession of narcotics with intent to sell and criminal
possession of a revolver, brought to the Superior Court in
the judicial district of Hartford, where the defendant
entered a plea of guilty to the charges of possession of
narcotics with intent to sell and criminal possession of a
revolver; thereafter, the charge of murder was tried to the
jury before D'Addabbo, J.; subsequently, the court denied
the defendant's motion for a judgment of acquittal;
verdict of guilty; thereafter, the court denied the
defendant's motion for judgment notwithstanding the
verdict; judgment of guilty in accordance with the verdict
and plea, from which the defendant appealed.
Affirmed.
Lisa
J. Steele, assigned counsel, for the appellant (defendant).
Timothy J. Sugrue, 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).
Lavine, Prescott and Bear, Js.
OPINION
LAVINE, J.
The
defendant, Anthony Pernell, appeals from the judgment of
conviction, rendered after a jury trial, of murder in
violation of General Statutes § 53a-54a. On appeal, the
defendant claims that the prosecutor committed prosecutorial
improprieties in his closing argument, which deprived the
defendant of his due process right to a fair trial. We affirm
the judgment of the trial court.
The
jury reasonably could have found the following facts. In
March, 2015, the defendant; his mother, Gail Grant (mother);
and half brother, Christopher Grant (Grant), resided in a
three bedroom apartment located at 48 Congress Street in
Hartford (apartment). On March 17, 2015, the defendant and
Lilliana Restrepo, the victim, were together in the
defendant's bedroom smoking phencyclidine (PCP) while the
victim got ready for work. When the victim went to leave for
work, the defendant shot her with a revolver (gun) at close
range in the center of her forehead.
The
defendant was taken into custody and interviewed by the
police.[1] The defendant told the police that the
victim was his friend. He stated that the victim was
stressing about her son and that she wanted to kill herself
because the Department of Children and Families took her son
away. The defendant stated that he took the gun out of a bag
to show the victim, and she was playing with it. The
defendant said that he tried to stop her, but he accidentally
pulled the trigger when he grabbed the gun from her. He
claimed that it went off because the victim already had
cocked the gun. The defendant stated that he was standing in
front of the victim when the gun went off. He also stated:
‘‘I wasn't giving her the gun when I shot her
in the head. . . . I tried grabbing the gun from her . . .
and the shit went off. I told you, it's kind of . . .
man, that's why I said it, it was just kind of strange.
And then . . . I feel like they probably wouldn't believe
. . . me . . . that's why I kind of . . . made it look
like she killed herself. . . . Like, actually she had the gun
aimed, I grabbed. . . . Do you understand what I'm
saying?'' The defendant admitted that he put the gun
in the victim's hand to make it look like she shot
herself. He also admitted that he did not call an ambulance
after the victim was shot.
The
detectives attempted to take the defendant's written
statement. During that discussion of the events, the
defendant stated: ‘‘I was dirty with drugs . . .
basically that's why I came up with this story. . . . I
just don't want to get involved in this shit at all. I
was trying to keep myself cleared . . . because I had drugs
on me, '' and ‘‘I just said that because
I had the drugs on me. . . . I don't know really what
happened. I came and checked my phone . . . I went outside to
make a couple [drug] sales. I came back, and I found her like
that.'' The defendant claimed that he told the police
that he had shot the victim to cover up that he had drugs on
his person. After that exchange, the detectives left the
interview room. In their absence, the defendant knocked on
the interview room door and, when the detectives opened the
door, the defendant said: ‘‘I just want to tell
you guys the truth, man, because I know you won't believe
me . . . . I grabbed the gun by accident, man. I know
y'all wouldn't believe me, man.'' The
defendant claimed that this was the truth.
The
defendant was arrested and charged with murder, possession of
narcotics with intent to sell, and criminal possession of a
revolver.[2]
Both
the defendant and Grant testified at trial. Their respective
testimonies are relevant to our evaluation of the
defendant's claims on appeal and are, therefore,
summarized herein. The defendant testified that when he and
the victim were smoking in his bedroom, the victim exchanged
a series of phone calls with her mother to arrange for a ride
to work. After the victim told her mother that she would find
her own ride to work, a heated conversation ensued between
the victim and her mother. The defendant further testified
that the victim asked him if he would be there for her as a
friend, and that she also expressed that she was getting
emotionally close to the defendant. The defendant testified
that the victim said she felt stupid and ugly, and so the
defendant told her that he would be there for her in the best
way that he could. The defendant testified that, after that
exchange, the victim stated that ‘‘she was tired
of everybody'' and started texting. At that time, the
defendant testified that he looked for a CD-ROM to play to
calm her down because she was aggravated from the phone call
and disappointed that the defendant did not realize how she
felt toward him emotionally. The defendant further testified
that the victim, who the defendant called Lill, took a gun
from the defendant's closet and that: ‘‘I
said, what you got in your hand? I'm like, Lill, and this
is what I said, what the fuck are you doing? She like, no,
I'm tired. . . . You ain't right. . . . I said, what
you talking about? Then, at this time, I'm standing up
because she got a gun in her hand and thought . . . maybe she
[was] going to shoot me or she might kill herself . . .
.'' The defendant continued: ‘‘I ask her,
what the fuck she doing. She just said she was tired of
everybody and I'm not right. And I said, Lill, what you
doing? She kicked the handle back. I said, Lill, you
can't do this. We in my mother's house. I said, we
all go to jail if you do this. At this time, she started
putting the gun up like this, and I got closer. By the time
she had it to her head, I pulled it back, she put it in the
other hand and it went off. And then it dropped.''
The defendant testified that he paced in his room, and that
he then picked the gun up and put it on his bed. Then he went
into Grant's adjacent bedroom and woke him up.
Grant
testified that the defendant and the victim were friends, and
that their relationship may have been sexual in exchange for
drugs. Grant testified that on the day of the shooting, the
defendant came into his room, woke him from sleep, and said
that he had done something wrong and shot the victim. Grant
further testified that he asked the defendant if he was
joking, and the defendant could not clarify, and so the
defendant told Grant to go in the next room and look for
himself. They went into the defendant's bedroom together,
where Grant observed the victim lying with her head back in a
basket. Grant testified that he checked the victim's
pulse on her left arm. He testified that the defendant then
‘‘showed me that he had shot her'' and
that ‘‘[b]ecause her face was facing the other
direction to the side, I didn't see the bullet wound at
first, and he showed me that it was there.'' It was
at that time that Grant learned that the victim was dead.
Grant asked the defendant what happened, but the defendant
could not answer him. They stayed in the defendant's
bedroom for about fifteen minutes. Grant testified that,
after fifteen minutes, they stepped into the hallway, where
they stayed for twenty to forty minutes. After that time, the
defendant went back into the bedroom to try and wake the
victim up. Grant had to pull the defendant off the victim and
close the door to the bedroom. Grant testified that the
defendant then received a call to make a drug sale and that
he left the apartment.
When
the defendant returned from his drug sale, Grant testified
that he and the defendant made their way back to the
defendant's bedroom. According to Grant, the defendant
suggested at that time that ‘‘he makes it look
like a suicide.'' Grant told the defendant that that
would not be the right thing to do, and he turned away from
the defendant's bedroom. The defendant testified that,
when Grant left the bedroom, ‘‘I sat on the bed,
and I started thinking, just started looking at her. I
didn't know what to do. I just sit there for a minute and
then my mind start racing like, man, when I tell them this,
they ain't never going to believe me. So, I just started
clicking like, I said, man, my story, they ain't going to
believe this, so I put the gun in her hand to make it look
like what it was. I tried to grab, but it went off.''
The defendant further testified that he saw that the
victim's mother was calling the victim's cell phone
again, but he did not answer the phone. The defendant removed
the cell phone from the victim's hand and placed the gun
in her hand.
Grant
called his girlfriend, mother, and uncle, and his mother
called the police. The responding police officer, Dominick
Agostino, testified that, upon entering the apartment, he
heard Grant on the telephone stating: ‘‘He shot
her. He shot her. I can't believe this.''
Agostino observed the defendant frantically scan the area and
look for a place to escape but was unable to do so.
On the
basis of the evidence presented at trial, the jury found the
defendant guilty of murder in violation of § 53a-54a,
and the court accepted the jury's verdict. The defendant
was sentenced to a term of fifty years of incarceration. This
appeal followed. Additional facts will be set forth as
necessary.
On
appeal, the defendant claims that the state violated his due
process right to a fair trial when the prosecutor committed
six separate improprieties during closing argument. He argues
that the prosecutor expressed personal opinions, discussed
facts not in evidence, and appealed to the jurors'
emotions. The defendant contends that his intent when the
victim was shot was ‘‘the key issue in this case,
'' and that the claimed improprieties were harmful
because the state's case was weak. The state concedes
that two of the prosecutor's statements were improper but
argues that they did not deprive the defendant of his due
process right to a fair trial. We conclude that,
notwithstanding the state's concessions, even if two of
the prosecutor's remarks were improper, they did not
deprive the defendant of his due process right to a fair
trial.
We
first set forth the relevant legal principles governing our
review.[3] It is often said that
‘‘[w]hile [the prosecutor] may strike hard blows,
he is not at liberty to strike foul ones. It is as much his
duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to
bring about a just one.'' (Internal quotation marks
omitted.) State v. Rowe, 279 Conn. 139,
159, 900 A.2d 1276 (2006), quoting Berger v.
United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79
L.Ed. 1314 (1935).
‘‘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 ...