State v. Daye

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STATE OF CONNECTICUT v. KELVIN DAYE
(AC 37160)
DiPentima, C. J., and Keller and Mullins, Js.
Argued May 11—officially released September 15, 2015

(Appeal from Superior Court, judicial district of
Hartford, Vitale, J.)
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion

KELLER, J. The defendant, Kelvin Daye, appeals from
the judgment of conviction, following a jury trial, ren-
dered by the trial court on one count of capital felony
in violation of General Statutes (Rev. to 2003) § 53a-54b
(5). He claims that prosecutorial improprieties occurred
during the state’s initial closing and rebuttal arguments
that deprived him of his right to a fair trial. We affirm
the judgment of the court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant here.
In July, 2004, the victim, Trupti Patel, and her husband
lived in an apartment complex located in East Hartford.
At that time, both of them worked for the same company
in East Windsor. The victim and her husband both were
working during the early morning hours of July 9, 2004.
At approximately 1:30 a.m., the victim completed her
work shift and left her place of employment after
informing her husband, who was in the middle of his
work shift, that she was going home and that she did
not have to attend classes for school later that morning.
At some point in time after returning to the apartment
complex on July 9, 2004, the victim came across the
defendant and a violent encounter ensued between
them. During the encounter, the defendant broke a win-
dow on a locked door leading to the basement of the
apartment complex, reached through the hole in the
window, opened the door from the inside, and forced
the victim into the basement. He shot the victim three
times in her head, wrapped a garbage bag around her
head, tied a rope and duct tape around the bag, and
left her naked from the waist down in the furnace room
of the basement.
The victim’s husband ended his work shift at approxi-
mately 6 a.m. on July 9, 2004, and arrived at the apart-
ment complex at approximately 6:30 a.m. that morning.
The victim was not in their apartment, although her car
was parked in the apartment complex’s parking lot.
The victim’s husband checked the apartment complex’s
gymnasium, but he found that it was closed. He pro-
ceeded to call one of the victim’s friends from school,
one of his friends who lived in the same apartment
complex, and the victim’s brother, but none of them
had heard from the victim. He then called the police
and filed a missing person’s report.
Later that evening, a number of friends of the victim’s
husband visited him at his apartment to offer him com-
pany and support. They decided to look around the
apartment complex for any clues as to the victim’s
whereabouts. At approximately 2 a.m. on July 10, 2004,
while searching the apartment complex, one of the
friends of the victim’s husband noticed that the window
on the basement door was broken. The victim’s husband
called the police to report the broken window.
Following the victim’s husband’s call, Adam Aborn,
a patrol officer for the East Hartford Police Department,
was dispatched to the apartment complex. The victim’s
husband led him to the basement door with the broken
window. Aborn noticed what appeared to be a small
amount of blood located on the floor beyond the door.
The door was locked, so Aborn called a property man-
agement employee to unlock the door. After the door
was unlocked and opened, Aborn observed a large pool
of dried blood at the base of the door. Within the pool of
blood was a pair of eyeglasses that the victim’s husband
identified as belonging to the victim. Aborn directed
the victim’s husband to remain outside of the doorway
while he, along with another police officer who had
arrived at the scene, ventured into the basement.
Past the basement door was a dimly lit hallway
approximately 100 yards long. Aborn observed a long,
continuous blood trail leading down the hallway, as
well as blood stains on the walls. About halfway down
the hallway was another door, which had blood
smeared on it. Aborn went through the doorway and
observed that the blood trail continued, uninterrupted,
to another door ahead of him that led into the furnace
room.1 He then entered the furnace room and discov-
ered the victim’s body.
Subsequently, additional police officers arrived to
secure and process the crime scene. The investigating
officers discovered the following relevant pieces of evi-
dence: (1) blood on the broken window; (2) blood on
a lightbulb in the hallway leading to the furnace room;
(3) an unwrapped condom; (4) one unfired .22 caliber
bullet and two fired .22 caliber shell casings; and (5)
one pair of women’s pants and one pair of women’s
underwear.2 Scientists at the state forensic laboratory
determined that various blood samples retrieved from
the crime scene contained a DNA profile that did not
belong to the victim. Consequently, the unidentified
DNA profile was entered into a national database to
search for potential matches.
Several years later, on July 1, 2010, the state forensic
laboratory notified the East Hartford Police Department
that the unidentified DNA profile collected from the
crime scene matched the DNA profile of the defendant,
which had been entered into the database on June 19,
2009. On September 15, 2010, Ellen Stoldt, a detective
with the East Hartford Police Department, executed a
search warrant on the defendant, who was being
detained at the Immigration and Customs Enforcement
office in Hartford, and obtained samples of his saliva,
fingerprints, and palm prints. Stoldt then read to the
defendant his Miranda rights,3 which he waived. She
proceeded to inform him that his blood had been found
at a crime scene in East Hartford and that a woman,
whom she did not identify, had been the victim of a
crime, although she did not specify that the woman had
been killed. The defendant stated that he did not commit
any crimes in East Hartford, and asked Stoldt why any-
one would have wanted to kill the woman. When asked
how he knew that a homicide had occurred, he began
to sweat and rock back and forth in the chair in which
he was sitting.
Subsequently, the state forensic laboratory con-
firmed that several blood samples found at the crime
scene belonged to the defendant. Further analysis also
determined that the defendant’s DNA was present on
the inside and outside of the condom found at the crime
scene, and that the defendant, or a member of the same
paternal lineage, could not be eliminated as the source
of DNA found on the inside and outside of the women’s
pants and underwear found at the crime scene.
The defendant was arrested and charged with six
counts: in count one he was charged with murder in
violation of General Statutes § 53a-54a; in count two he
was charged with sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (1); in count
three he was charged with kidnapping in the first degree
in violation of General Statutes § 53a-92 (a) (2) (A); in
count four he was charged with capital felony in viola-
tion of General Statutes (Rev. to 2003) § 53a-54b (6);4
in count five he was charged with capital felony in
violation of General Statutes (Rev. to 2003) § 53a-54b
(5);5 and in count six he was charged with felony murder
in violation of General Statutes § 53a-54c.
The case was tried to a jury. The defendant did not
testify. During the trial, the state introduced evidence
connecting the defendant, through DNA analysis, to the
condom, the victim’s pants and underwear, and various
blood samples located at the crime scene. Furthermore,
the state elicited testimony from Carmen Bournes, a
woman with whom the defendant had been involved
romantically from May, 2002, to 2005 or 2006, and with
whom he had fathered a child. Bournes testified as to
the following. One night, the defendant and Bournes
were watching television. The defendant seemed upset
and told her that he had an incident with a woman that
had gone ‘‘bad.’’ He stated to her that he had broken a
window to get into a basement, and that the woman
had ‘‘put up a fight.’’ He also mentioned that a woman
had been killed, and he pointed at the television screen
and stated to Bournes, ‘‘I told you, see, I told you,’’
when news coverage of the victim’s death was being
broadcasted. He also told Bournes that an Indian
woman had been haunting him. Subsequently, at some
point in 2004 or 2005, the defendant showed Bournes
a pocketbook that was wet. Inside the pocketbook were
documents, including one that appeared to be a pass-
port. The defendant told Bournes that the pocketbook
‘‘was hers,’’ which Bournes believed was in reference
to the woman who had been killed.6
The jury found the defendant guilty on counts one,
three, five, and six, but not guilty on counts two or
four. The court, Vitale, J., sentenced the defendant to
life in prison without the possibility of release on count
five and, pursuant to State v. Polanco, 308 Conn. 242,
61 A.3d 1084 (2013), vacated the other three convic-
tions.7 This appeal followed. Additional facts will be set
forth as necessary.
The defendant claims that the prosecutor made
improper comments during the state’s initial closing
and rebuttal arguments and, as a result, he was deprived
of his right to a fair trial. Specifically, the defendant
asserts that, during the state’s initial closing argument,
the prosecutor improperly appealed to the jurors’ emo-
tions, provided the jurors with his personal opinion
of the evidence, and made an improper ‘‘golden rule’’
argument. Furthermore, he contends that, during the
state’s rebuttal argument, the prosecutor improperly
denigrated his defense and defense counsel’s integrity.
We disagree and conclude that all of the comments
challenged by the defendant were proper.
We begin by setting forth the relevant standard of
review. ‘‘In analyzing claims of prosecutorial impropri-
ety, 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. . . .
An appellate court’s determination of whether any
improper conduct by the prosecutor violated the defen-
dant’s right to a fair trial is predicated on the factors
established in State v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987). Those factors include the extent
to which the [impropriety] was invited by defense con-
duct or argument . . . the severity of the [impropriety]
. . . the frequency of the [impropriety] . . . the cen-
trality 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. . . .
[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 . . . .
‘‘As [our Supreme Court] previously [has] recognized,
prosecutorial [impropriety] of a constitutional magni-
tude can occur in the course of closing arguments. . . .
When making closing arguments to the jury, [however]
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment 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 advo-
cate, 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. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence upon jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks no
conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. 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. . . .
‘‘Claims involving prosecutorial impropriety during
the course of closing argument[s] require a court to
evaluate a prosecutor’s statements not for their possible
meaning, but for the manner in which the jury reason-
ably and likely would have understood them. Because
the meaning of words and statements typically is depen-
dent on the context in which they are used, a court must
carefully consider a prosecutor’s challenged statements
by carefully considering their context in the entire trial,
including the remainder of the state’s closing argu-
ment[s].’’ (Internal quotation marks omitted.) State v.
LaVoie, 158 Conn. App. 256, 274–76, A.3d (2015).
We proceed to set forth the following additional rele-
vant facts. During the state’s initial closing argument,
the prosecutor made the following comments in rele-
vant part: ‘‘In your minds go to [the apartment com-
plex] on July 10, 2004, enter the door just as any
other individual did, Officer [Michael] Romano [an
investigating police officer], anyone else from the East
Hartford police, and consider what was there, consider
what you saw. Now, when you get over the horror
and the shock and everything that comes with what
contributed to that woman’s death, step back. Step back
and do a walk-through from that back doorway, come
through the door, go down the stairs and stand there,
stand there in the landing area before you enter the
basement hallway. Look up. See a broken light. Look at
the door. See a broken window with glass and apparent
pieces of the light fixture there in that landing area. Go
through the door and look down the hallway and be
struck by how dark it is. And then look through the
hallway and see five fluorescent lightbulbs throughout
the hallway; other lightbulbs that are still in their fix-
tures but not working. And then observe blood through-
out the entire hallway.
‘‘You find a bullet. You find a condom. You find a
pair of glasses right at the doorway. You walk through
a middle door and you still perceive. You find a carriage
with pants and underpants attached in a side hallway
area. And then continue straight down the hall and enter
what’s labeled as a sprinkler room, and you find a
bloodbath, and you also find a dead woman who is
naked from the waist down.
’’The reason I ask you to do that and consider all of
that is because your arrival at that scene and everything
you see in that scene up to the discovery of [the victim]
enables you to all determine from that day that all six
charges that I’ve presented have been proven beyond
all doubt. . . .
‘‘Two counts of capital felony. [The victim] was mur-
dered in the course of a kidnapping, she was ambushed
when she came home from work, and forced down that
hallway that was estimated to be about 300 feet long,
100 yards long. She was kidnapped. She was murdered
in the course of a kidnapping.
‘‘Second count, capital felony. [The victim] was mur-
dered in the course of a sexual assault. You find this
woman, she’s naked from the waist down. . . .
‘‘The lab processed pieces of evidence. They entered
into a database. Still no identity of who contributed to
all these things until June, 2009, when [the defendant]
was placed into the database. And there you have it.
‘‘But you don’t have it on one piece of evidence; you
have it on so many pieces of evidence. The broken
glass, forcing entry into that basement area, lying in
wait for [the victim]. As I stand here today, I cannot
tell you, and I don’t know if you can determine from
the evidence, was [the victim] targeted? Was she the
one he wanted or was any potential person coming
through that doorway going to be the target? It’s not
clear and certainly nothing’s been presented to you
to say that he was looking at her for some period of
time. . . .
‘‘With the DNA evidence, with the forensic evidence,
you have a clearer picture that does nothing to contra-
dict what your first observation should be about that
scene. The darkness, the lying in wait, the ambush,
the removal of lightbulbs. The defendant’s blood, the
DNA profile that fits that of the defendant was found
on the glass from that door. Same profile was found in
the blood on the unilluminated lightbulb as you first
enter. A drop of blood in that doorway had a DNA
profile that fit the defendant. Another bloodstain by the
metal door fit the defendant. Another bloodstain in the
sprinkler room where [the victim’s] body was found fit
the defendant. . . .
‘‘Ladies and gentlemen, there really is no escapable
conclusion you can draw from all of the evidence and
consideration of all of the evidence, entertain,—and I
don’t mean that in a trite way—consider everything that
needs to be considered. But when you do consider all
of that, you will always come back to one conclusion:
It’s first based on looking at the evidence without even
consideration to that man. Again, you know everything
that happened and the only issue is—and the who is
resolved. You literally look at the scene and say, Oh
my God, but, again, after you step back, and as we
asked you during jury selection, can you set those issues
aside, can you set any issues of emotion aside and to
the best of your ability objectively assess the evidence.
When you do, there’s no escapable issue. There’s one
conclusion. Thank you, ladies and gentlemen.’’ (Empha-
sis added.)
Defense counsel presented his closing remarks after
the conclusion of the prosecutor’s initial closing argu-
ment. In essence, defense counsel argued that someone
other than the defendant had killed the victim and, for
unknown reasons,8 the defendant had broken into the
basement, discovered the victim’s body and left the
scene, leaving his DNA in the process.
The prosecutor then offered the following remarks
in rebuttal: ‘‘I only thought I’d say oh my God once.
Ladies and gentlemen, closing argument is not a ques-
tion and answer time. But of course there is one burning
question now: Why did [the defendant] need to tres-
pass? Why did he need to break into that hallway area,
if that’s being conceded? There’s nothing there. You
saw that. And he doesn’t even live there, he lives in
East Hampton. He’s a good guy who has a nice home
and a wife and kids. Answer that question. You’ve been
presented with that hypothetical. If it has a reasonable
answer, if it has a reason by which he needed to trespass
or was trespassing, then get on that bus and ride the
trip that [defense counsel] asks you to take.
‘‘East Hartford police tried to nail down an approxi-
mate time frame as to when this happened and they
were looking to match that time frame up and speak
with various people. Is that the begin all and end all of
when [the victim] was actually killed? No. There was
no camera at that doorway when she got ambushed,
but she certainly was ambushed.
‘‘It’s just amazing. You’re asked to consider [the
defendant’s] DNA dropping on the condom. Remember,
the limited mixture without robust profiles was on the
outside of the condom. The robust complete profile of
that man was from the inside of the condom. Of course,
through the alternative light and analysis conducted on
the body of [the victim], nothing was found on her body.
Maybe because the assailant had a condom.
‘‘And the pants. The pants are the ultimate connection
to the sexual assault, to the attack, to the killer of [the
victim], inside and outside. So that means that that
errant blood coming from [the defendant] managed to
get on the inside of the pants and the outside of the
pants. Everyone scratch their heads now.
‘‘And you know what’s incredible about Carmen
Bournes, you saw her. You know, I often take to heart
what the judge says about considering the testimony
of individuals and he said this during the beginning.
You’d be called upon to assess someone’s testimony
no matter what walk of life they may come from. They
could be a scientist, they could be a priest, a doctor,
or a so-called street person. You make your assessment
of Carmen Bournes, who she is, where she is, what her
connection is. She had a relationship with this guy, she
had a child with him.
‘‘But the most wonderful thing about her testimony
is before [the defendant] is identified as a suspect in
2009, June, 2009, she told other police officers about
what he told her back in 2004. That is the magical truth
to his confession to her. Sure, she acknowledged when
she sat down with officers in 2006 when he was arrested
for what led to be the conviction for threatening, he
did X, Y, and Z, and he told me about a woman he killed.
Detective Stoldt knows nothing of this. She doesn’t even
know who [the defendant] is in 2006. . . . Bournes
isn’t currying favor. She has already told someone who
would listen that this guy admitted to killing a woman
in a basement area. Wow.
’’I do mean it and I mean it again, consider everything
said by all of us. You’re drawn back to the conclusion
of what the evidence presents you and who did it. Thank
you, ladies and gentlemen.’’ (Emphasis added.)
I
We first address the defendant’s claim that that the
prosecutor made improper comments throughout the
state’s initial closing argument. Specifically, he asserts
that the prosecutor improperly (1) appealed to the emo-
tions of the jurors, (2) provided his personal opinion
of the evidence, and (3) made an improper ‘‘golden
rule’’ argument. We disagree and address each alleged
impropriety in turn.
A
First, the defendant asserts that the prosecutor
improperly appealed to the emotions of the jurors dur-
ing the state’s initial closing argument by improperly
stating that the jurors should ‘‘get over the horror and
the shock and everything that comes with what contrib-
uted to [the victim’s] death,’’ describing the victim’s
body as being ‘‘naked from the waist down’’ on two
occasions, commenting that an observer would say,
‘‘Oh my God,’’ when viewing the crime scene, comment-
ing that the defendant was ‘‘lying in wait’’ to ‘‘ambush’’
the victim in the ‘‘darkness,’’ and describing the furnace
room as a ‘‘bloodbath . . . .’’ We disagree.
‘‘[I]t is well established that, [a] prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors. . . . [S]uch appeals should be avoided because
they have the effect of diverting the jury’s attention
from their duty to decide the case on the evidence. . . .
When the prosecutor appeals to emotions, he invites
the jury to decide the case, not according to a rational
appraisal of the evidence, but on the basis of powerful
and irrelevant factors which are likely to skew that
appraisal.’’ (Internal quotation marks omitted.) State v.
Tilus, 157 Conn. App. 453, 482, A.3d , cert.
granted, 317 Conn. 915, A.3d (2015). ‘‘It must
be acknowledged that the line between comments that
risk invoking the passions and prejudices of the jurors
and those that are permissible rhetorical flourishes is
not always easy to draw. The more closely the com-
ments are connected to relevant facts disclosed by the
evidence, however, the more likely they will be deemed
permissible.’’ State v. Albino, 312 Conn. 763, 773, 97
A.3d 478 (2014). A prosecutor is permitted to use vivid
language to describe the ‘‘nature and enormity of the
crime when supported by the evidence,’’ and to the
extent that such language appeals to the emotions of
the jurors, it is ‘‘because of the nature of the crime and
not because of the terminology the prosecutor used to
get his [or her] point across.’’ State v. Andrews, 313
Conn. 266, 301, 96 A.3d 1199 (2014). Thus, comments
that are factually based on the evidence and not unduly
provocative constitute permissible argument. See State
v. Albino, supra, 774.
With the foregoing legal principles in mind, we con-
clude that the prosecutor did not improperly appeal to
the emotions of the jurors. His comments regarding the
victim being ‘‘naked from the waist down,’’ the defen-
dant ‘‘lying in wait’’ to ‘‘ambush’’ the victim in the ‘‘dark-
ness,’’ and the ‘‘horror’’ and ‘‘shock’’ of the crime scene,
including his description of it as a ‘‘bloodbath’’ and the
‘‘Oh my God’’ remark, were all based on the evidence
before the jury and were not unduly provocative.9 See
State v. Andrews, supra, 313 Conn. 301 (comment that
case was about ‘‘brutal, vicious drug-filled homicide,
about a young woman who lost her life at the squeezing
hands of the defendant’’ deemed proper [emphasis omit-
ted; internal quotation marks omitted]); State v. Albino,
supra, 312 Conn. 774 (comments that victim’s body was
‘‘ ‘peppered with bullets’ ’’ and that ‘‘ ‘the first bullet
tore into his body’ ’’ deemed proper); State v. Maner, 147
Conn. App. 761, 791, 83 A.3d 1182 (comment describing
victim as ‘‘ ‘poor young man in Waterbury lying dead
in his hallway’ ’’ deemed proper), cert. denied, 311
Conn. 935, 88 A.3d 550 (2014); cf. State v. Albino, supra,
775 (comment describing victim’s body as showing
‘‘ ‘indignity of death’ ’’ deemed improper); State v.
Payne, 260 Conn. 446, 463, 797 A.2d 1088 (2002) (com-
ment describing victim’s body as being ‘‘ ‘on a slab, on
a cutting board’ ’’ deemed improper).
In addition, the defendant claims that the prosecu-
tor’s depiction of the defendant ‘‘lying in wait’’ to
‘‘ambush’’ the victim in the ‘‘darkness’’ was also
improper because the prosecutor was not required to
prove at trial that the defendant had lain in wait to
ambush the victim. As a result, the defendant asserts
that those comments were solely intended to be appeals
to the jurors’ emotions. We disagree. A prosecutor is
entitled to use descriptive language to set forth the
nature and background of a crime, so long as his or
her comments are based on the evidence. See State
v. Andrews, supra, 313 Conn. 301. The fact that the
prosecutor did not have the burden to prove that the
defendant ambushed the victim or lay in wait for her
does not render his comments improper, as his com-
ments described the manner in which the prosecutor
believed that the defendant committed the crime on
the basis of reasonable inferences drawn from the
evidence.
For the foregoing reasons, we conclude that the com-
ments challenged by the defendant as improper appeals
to the emotions of the jurors were proper.
B
Next, the defendant asserts that the prosecutor
improperly provided the jury with his personal opinion
of the case by commenting that ‘‘[y]ou literally look at
the [crime] scene and say, Oh my God . . . .’’ We dis-
agree. As an initial matter, immediately prior to the
comment at issue, the prosecutor referred to the evi-
dence. Then, immediately after the comment, he asked
the jurors to set aside their emotions. Having reviewed
the evidence, including the photographs of the crime
scene in particular, we conclude that the comment,
which was not phrased in the first person, reflected
the reaction that the prosecutor believed the jurors
reasonably may have experienced when they viewed the
horrific evidence depicting the crime scene. Although a
prosecutor may not provide the jury with his or her
opinion as to the credibility of a witness or the guilt of
the defendant, he or she is entitled to provide the jury
with his or her comment upon the evidence presented
and any reasonable inferences that can be drawn there-
from. See State v. Washington, 155 Conn. App. 582,
605–606, 110 A.3d 493 (2015). Like the comment regard-
ing the ‘‘horror’’ and ‘‘shock’’ of the crime scene that
we discussed previously in part I A of this opinion, we
view the phrase, ‘‘Oh my God,’’ to be another fair way
of commenting on the reasonable inference, which
could be drawn from the evidence, that the crime scene
was shocking. Therefore, the defendant’s claim fails.
C
Last, the defendant asserts that the prosecutor vio-
lated the prohibition against making ‘‘golden rule’’ argu-
ments by asking the jurors to put themselves in the
difficult position of one of the police officers investigat-
ing the crime scene and discovering the victim’s body
in the furnace room. By urging the jurors to view the
crime scene from that perspective, the defendant con-
tends, the prosecutor urged the jury to decide the case
on the basis of sympathy. We disagree.
‘‘[A] golden rule argument is one that urges jurors to
put themselves in a particular party’s place . . . or into
a particular party’s shoes. . . . Such arguments are
improper because they encourage the jury to depart
from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.
. . . They have also been equated to a request for sym-
pathy. . . . The danger of these types of arguments
lies in their [tendency] to pressure the jury to decide
the issue of guilt or innocence on considerations apart
from the evidence of the defendant’s culpability. . . .
[T]he animating principle behind the prohibition on
golden rule arguments is that jurors should be encour-
aged to decide cases on the basis of the facts as they
find them, and reasonable inferences drawn from those
facts, rather than by any incitement to act out of passion
or sympathy for or against any party. . . . Although
we recognize that this danger is most acute when the
prosecutor asks the jurors to put themselves in the
position of the victim rather than the defendant or
another witness . . . we conclude that the principle
barring the use of such arguments is the same regardless
of which individual is the subject of the prosecutor’s
emotional appeal.’’ (Citation omitted; internal quotation
marks omitted.) State v. Daniel G., 147 Conn. App. 523,
557–58, 84 A.3d 9, cert. denied, 311 Conn. 931, 87 A.3d
579 (2014).
Here, the prosecutor did not divert the jurors’ atten-
tion away from the evidence; instead, he directed them
to view the evidence and used the perspective of one
of the investigating police officers as a rhetorical tool
to aid the jurors in visualizing the crime scene. The
record suggests that the prosecutor’s comments were
not aimed to induce the jurors to experience feelings
of sympathy or other emotions toward any of the
investigating police officers, particularly since the
behavior of the officers in no way related to any of the
elements of the crimes charged or any interaction they
had with the defendant. Cf. id., 559–60 (‘‘the prosecu-
tor’s comment inviting the jurors to place themselves
in the shoes of a police officer was tantamount to a
request for sympathy and a recognition of the challeng-
ing tasks facing police officers’’ where police officer
had pursued defendant and pointed Taser at him).
Rather, the prosecution was asking the jurors to con-
sider the evidence at the crime scene dispassionately
and carefully in the manner of one of the investigating
officers. Therefore, the prosecutor’s comments did not
amount to an improper ‘‘golden rule’’ argument.
II
We now turn to the defendant’s claim that the prose-
cutor made improper comments throughout the state’s
rebuttal argument. Specifically, he claims that the pros-
ecutor improperly denigrated his defense and the integ-
rity of defense counsel by (1) suggesting that defense
counsel was misleading the jurors, and (2) using exces-
sive sarcasm when responding to defense counsel’s
arguments. We disagree and address each alleged
impropriety in turn.
A
First, the defendant asserts that the prosecutor
improperly commented that the jurors would have to
‘‘get on that bus and ride the trip that [defense counsel]
ask[ed them] to take’’ if they believed defense counsel’s
argument that the defendant had stumbled upon the
victim’s body after another individual had killed her.
According to the defendant, the foregoing comment
improperly suggested that defense counsel was mis-
leading the jurors with a deceptive argument that had
no basis in the record. We disagree.
‘‘[T]he prosecutor is expected to refrain from
impugning, directly or through implication, the integrity
or institutional role of defense counsel. . . . There is
a distinction [however] between argument that dispar-
ages the integrity or role of defense counsel and argu-
ment that disparages a theory of defense. . . . There
is ample room, in the heat of argument, for the prosecu-
tor to challenge vigorously the arguments made by
defense counsel.’’ (Internal quotation marks omitted.)
State v. James, 141 Conn. App. 124, 149, 60 A.3d 1011,
cert. denied, 308 Conn. 932, 64 A.3d 331 (2013).
With the foregoing principles in mind, we conclude
that the prosecutor’s ‘‘bus’’ comment was proper. We
first note that ‘‘[c]losing arguments of counsel . . . are
seldom carefully constructed in toto before the event;
improvisation frequently results in syntax left imperfect
and meaning less than crystal clear. While these general
observations in no way justify prosecutorial [impropri-
ety], they do suggest that a court should not lightly infer
that a prosecutor intends an ambiguous remark to have
its most damaging meaning or that a jury, sitting through
lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.’’ (Internal
quotation marks omitted.) State v. Salazar, 151 Conn.
App. 463, 473, 93 A.3d 1192 (2014). Here, the prosecu-
tor’s ‘‘bus’’ comment did not unequivocally suggest that
he was implying to the jurors that defense counsel was
misleading and deceiving them. It is reasonable to inter-
pret the ‘‘bus’’ comment as an exasperated statement
by the prosecutor indicating that defense counsel’s
argument was totally inconsistent with the evidence.
Indeed, defense counsel argued that the defendant hap-
pened upon the body after someone else had killed the
victim. Yet, the defendant’s DNA was on the inside
of the victim’s pants and underwear. Absent a clear
indication that the prosecutor’s ‘‘bus’’ comment
accused defense counsel of misleading and deceiving
the jurors, we conclude that the comment constituted
permissible rhetorical argument. Cf. State v. Albino,
supra, 312 Conn. 776–77 (comments comparing
‘‘defense strategy to an octopus’ defense mechanism of
shooting ink into the water, thus muddying the water
so the octopus can escape’’ and describing defense
strategy as ‘‘shotgun approach . . . [y]ou shoot it
against the wall and you hope that something will stick,’’
deemed improper [internal quotation marks omitted]);
State v. Maguire, 310 Conn. 535, 557, 78 A.3d 828 (2013)
(comments referring to defense counsel’s strategy as
‘‘ ‘smoke and mirrors’ ’’ and stating that defense counsel
had taken jury on ‘‘ ‘magic trip’ ’’ deemed improper).
B
Next, the defendant asserts that the prosecutor
improperly used excessive sarcasm by: proclaiming that
he ‘‘only thought [he’d] say oh my God once,’’ in
response to defense counsel’s argument that the defen-
dant had found the victim’s body after she had been
killed; commenting that defense counsel’s theory con-
cerning the time line of the victim’s death was ‘‘just
amazing’’; commenting that ‘‘[e]veryone [should]
scratch their heads now,’’ when referencing defense
counsel’s argument that, as the defendant left the base-
ment after finding the victim’s body, his blood had
landed on the victim’s pants and underwear found at
the crime scene; and stating, ‘‘[w]ow,’’ after addressing
Bournes’ testimony. We disagree.
‘‘[O]ur Supreme Court has recognized that repetitive
and excessive use of sarcasm is one method of improp-
erly swaying the [jury]. . . . Additionally, we have rec-
ognized that the excessive use of sarcasm may
improperly influence a jury. . . . A prosecutor’s fre-
quent and gratuitous use of sarcasm can [call on] the
jurors’ feelings of disdain, and likely sen[d] them the
message that the use of sarcasm, rather than reasoned
and moral judgment, as a method of argument [is] per-
missible and appropriate for them to use. . . .
Although we neither encourage nor condone the use
of sarcasm, we also recognize that not every use of
rhetorical language or device is improper. . . . The
occasional use of rhetorical devices is simply fair argu-
ment.’’ (Citations omitted; internal quotation marks
omitted.) State v. Holley, 144 Conn. App. 558, 569, 72
A.3d 1279, cert. denied, 310 Conn. 946, 80 A.3d 907
(2013). ‘‘[S]ome use of sarcastic and informal language,
when intended to forcefully criticize a defense theory on
the permissible bases of the evidence and the common
sense of the jury, is not necessarily improper.’’ State v.
James, supra, 141 Conn. App. 150.
With the foregoing principles in mind, we conclude
that the foregoing comments constituted permissible
rhetorical flourish. None of the comments attacked
defense counsel personally, but rather expressed the
prosecutor’s incredulity in regard to defense counsel’s
theory of defense. Furthermore, the comments were not
excessively or derisively sarcastic. See State v. Kendall,
123 Conn. App. 625, 645, 2 A.3d 990 (comments referring
to defense counsel’s arguments as ‘‘ludicrous’’ and
‘‘incredulous’’ deemed proper [emphasis omitted; inter-
nal quotation marks omitted]), cert. denied, 299 Conn.
902, 10 A.3d 521 (2010); State v. Boyd, 89 Conn. App.
1, 42, 872 A.2d 477 (comments referring to defense
counsel’s arguments as ‘‘ ‘stupid’ ’’ and ‘‘ ‘baloney’ ’’
deemed proper), cert. denied, 275 Conn. 921, 883 A.2d
1247 (2005), overruled in part on other grounds by State
v. Kemah, 289 Conn. 411, 432, 957 A.2d 852 (2008); cf.
State v. Rizzo, 266 Conn. 171, 261–64, 833 A.2d 363
(2003) (prosecutor’s repeated and excessive use of sar-
casm deemed improper). For the foregoing reasons, we
conclude that the comments challenged by the defen-
dant as excessively sarcastic were proper.10
The judgment is affirmed.
In this opinion the other judges concurred.
1
When asked whether he took care not to step on any potential piece of
evidence while in the hallway, Aborn testified: ‘‘Yes. I made sure that I, you
know, didn’t purposely step in the blood. I mean, there was so much blood
that, I mean, it would’ve ruined my shoes at the time.’’
2
The pants and underwear were found in a shopping carriage in a side
hallway in the basement.
3
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
4
In 2012, the legislature amended § 53a-54b and changed the title of the
statute from ‘‘Capital felony’’ to ‘‘Murder with special circumstances.’’ The
amended statute was applicable to crimes committed on or after April
25, 2012.
General Statutes (Rev. to 2003) § 53a-54b provides in relevant part: ‘‘A
person is guilty of a capital felony who is convicted of any of the following
. . . (6) murder committed in the course of the commission of sexual assault
in the first degree . . . .’’
5
General Statutes (Rev. to 2003) § 53a-54b provides in relevant part: ‘‘A
person is guilty of a capital felony who is convicted of any of the following
. . . (5) murder by a kidnapper of a kidnapped person during the course
of the kidnapping or before such person is able to return or be returned to
safety . . . .’’
6
The victim’s husband testified that the victim owned a purse and pos-
sessed a valid passport, neither of which were ever recovered.
7
In Polanco, our Supreme Court held that ‘‘when a defendant is convicted
of greater and lesser included offenses, the trial court shall vacate the
conviction for the lesser offense rather than merging it with the conviction
for the greater offense.’’ State v. Polanco, supra, 308 Conn. 260. The court
further held that a defendant’s conviction for a vacated lesser included
offense may be reinstated subsequently if the defendant’s conviction for the
greater offense is reversed ‘‘for reasons not related to the viability of the
vacated conviction.’’ Id., 263.
8
Defense counsel did not present any evidence during trial that provided
a reason for the defendant’s presence at the crime scene, although he
appeared to suggest in his closing argument that the defendant broke into
the basement with the intent to steal something of value.
9
A review of the evidence, particularly the photographs of the crime
scene, illustrates that the prosecutor’s comments were not hyperbolic.
10
In addition, we note that it is unclear whether the prosecutor’s ‘‘[w]ow’’
comment was directed at defense counsel’s theory of defense, as the com-
ment may have been made in reaction to the strength of the state’s case
on the basis of Bournes’ testimony.