State v. Nicholson

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STATE OF CONNECTICUT v. CARGIL A. NICHOLSON
(AC 36021)
DiPentima, C. J., and Prescott and Mullins, Js.
Argued November 14, 2014—officially released February 24, 2015

(Appeal from Superior Court, judicial district of
Fairfield, Hon. George N. Thim, judge trial referee.)
Robert E. Byron, assigned counsel, for the appel-
lant (defendant).
Linda Currie-Zeffiro, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and C. Robert Satti, supervisory assistant state’s
attorney, for the appellee (state).
Opinion

MULLINS, J. The defendant, Cargil A. Nicholson,
appeals from the judgment of conviction, rendered after
a jury trial, of manslaughter in the first degree in viola-
tion of General Statutes § 53a-55. The defendant claims
that (1) the state failed to present sufficient evidence
to disprove his defense of premises justification defense
beyond a reasonable doubt, and (2) the prosecutor
engaged in impropriety during closing argument by
resorting to conjecture and asserting facts that were
not based on the evidence, and by making false state-
ments to the jury concerning the law. We affirm the
judgment of the trial court.
On the basis of the evidence presented, the jury rea-
sonably could have found the following facts. On March
13, 2012, at approximately 6 p.m., the victim, James
Cleary, was dropped off in front of his apartment build-
ing by Michael Vena and Vincent Falkner, with whom
he had worked cutting down a tree that day. The victim
carried his two chain saws with him into the apartment.
Vena then drove around to the back of the apartment
building, where he and Faulkner put the victim’s climb-
ing gear and ropes into the victim’s van. The victim
greeted his wife and put down his chain saws. The
music from the apartment upstairs was quite loud, and
the victim’s wife complained to him.1 The victim pro-
ceeded to go upstairs, and his wife followed behind him.
The victim’s wife remained down the hallway while
the victim knocked on the defendant’s door, and the
door opened. The victim started yelling at the defendant
to turn down the music. The victim was approximately
fifty years old, weighed approximately 156 pounds, and
was five feet, nine inches tall. The defendant, who was
approximately five feet, seven inches to five feet, eight
inches tall, and weighed approximately 175 pounds,
then punched the victim in the face. The victim hit him
back. The defendant then pulled the victim into the
apartment and a scuffle ensued, which was heard by
the victim’s wife, who had remained down the hallway.
The defendant called the victim ‘‘the f-ing white devil.’’
The defendant then repeatedly hit the victim with an
umbrella.
The defendant’s live-in girlfriend, Tracy Wright, had
been in the bathroom washing her hair when the scuffle
first ensued. Upon exiting the bathroom, Wright saw
the defendant and the victim fighting. Wright tried to
get between the victim and the defendant to stop the
fight, but the victim pushed her back. The defendant
then grabbed a stool with both hands and hit the victim
in the back with it at least once, but may have hit him
as many as four times. The force of the blow to the
back was ‘‘pretty hard,’’ hard enough that the victim
would ‘‘feel the pain.’’ Wright told the defendant to put
down the stool, thinking that the defendant could hurt
or kill the victim with the stool, and the defendant
complied.
Wright then grabbed the victim by the arm, and, while
standing beside him, opened the door, and the victim
went out into the hallway, proceeding sideways through
the doorway. Although Wright did not notice any blood
or witness the victim being stabbed, the defendant, after
putting down the stool, had picked up a knife from the
counter and had stabbed the victim in the back, either
before or shortly after Wright had grabbed the victim
by the arm. The stab wound in the victim’s back was
seven and one-quarter inches deep. After getting the
victim out of the apartment, Wright called 911, telling
the dispatcher that she had pushed the victim out the
door. The defendant washed off the knife before the
police arrived.
The altercation inside the apartment took only sec-
onds, and when the victim staggered out of the defen-
dant’s apartment, he told his wife that the defendant
had stabbed him in the back. The victim’s shirt was
pulled up, his woolen cap had been pulled off, and he
was bleeding from his back. Panic stricken, the victim’s
wife ran downstairs, where she grabbed her purse so
that she could take the victim to the hospital. She then
went into the hallway looking for the victim. When she
could not find him in the hallway, she went outside to
the front of the house, where she saw the victim fall
to his knees. The victim then told his wife that he
thought he was dying. The victim’s wife realized that
she did not have her car keys, so she returned to the
apartment to get them.
Meanwhile, Vena, who had dropped the victim off at
the front of the house only five to ten minutes earlier,
had finished putting away the victim’s gear and was
leaving the property when he saw the victim lying on the
steps. Vena saw blood and immediately told Faulkner to
get out of the truck and to help the victim, which he
did. The victim then ‘‘stumbled’’ into the backseat of
the truck, and Faulkner jumped into the front passen-
ger’s seat. The victim told Vena, ‘‘He stabbed me.’’ Vena
then called 911 and drove to the Main Street intersec-
tion, where he waited for the ambulance to arrive. The
victim died as a result of the stab wound.
The defendant was arrested and charged with murder
in violation of General Statutes § 53a-54a (a). He raised
defense of premises as a justification defense, and the
court instructed the jury on this defense and on lesser
included offenses of murder. Following a not guilty
verdict on the charge of murder, the defendant was
convicted of the lesser included offense of manslaugh-
ter in the first degree. This appeal followed.
I
The defendant claims that the state failed to present
sufficient evidence to disprove his defense of premises
justification defense beyond a reasonable doubt. He
argues that he produced evidence that the victim was
a trespasser and an aggressor in this situation. The
defendant argues that, in accordance with General Stat-
utes § 53a-20 (2),2 he produced evidence that he ‘‘rea-
sonably believ[ed] that deadly force was necessary to
prevent an attempt by the trespasser to commit . . .
any crime of violence.’’ (Internal quotation marks omit-
ted.) Additionally, the defendant argues that he pro-
duced evidence that he reasonably believed that the
victim ‘‘would continue to attack him and inflict great
bodily harm.’’ (Internal quotation marks omitted.)
Accordingly, he argues that, because he met his burden
of production, the burden was on the state to disprove
his justification defense, which it then failed to do. We
are not persuaded that the state failed to meet its burden
to disprove beyond a reasonable doubt that the defen-
dant’s use of deadly physical force was justified.
‘‘On appeal, the standard for reviewing sufficiency
claims in conjunction with a justification offered by the
defense is the same standard used when examining
claims of insufficiency of the evidence. . . . In
reviewing a sufficiency of the evidence claim, we apply
a two part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt. . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict. . . . Moreover, we
do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis
of innocence. We ask, instead, whether there is a rea-
sonable view of the evidence that supports the jury’s
verdict of guilty. . . .
‘‘The rules governing the respective burdens borne
by the defendant and the state on the justification of
self-defense [and defense of premises] are grounded in
the fact that [u]nder our Penal Code, self-defense, as
defined in [General Statutes] § 53a-19 (a) [and defense
of premises as defined in § 53a-20 are] . . . defense[s],
rather than . . . affirmative defense[s]. See General
Statutes § 53a-16.3 Whereas an affirmative defense
requires the defendant to establish his claim by a pre-
ponderance of the evidence, a properly raised defense
places the burden on the state to disprove the defen-
dant’s claim beyond a reasonable doubt. See General
Statutes § 53a-12. Consequently, a defendant has no
burden of persuasion for a claim of self-defense [or
defense of premises]; he has only a burden of produc-
tion. That is, he merely is required to introduce suffi-
cient evidence to warrant presenting his claim . . . to
the jury. . . . Once the defendant has done so, it
becomes the state’s burden to disprove the defense
beyond a reasonable doubt.’’ (Citations omitted; empha-
sis omitted; footnote added; internal quotation marks
omitted.) State v. Revels, 313 Conn. 762, 778–79, 99 A.3d
1130 (2014); see also State v. Terwilliger, 294 Conn.
399, 408, 984 A.2d 721 (2009) (defendant bears initial
burden of producing sufficient evidence to raise issue
of defense of premises).
‘‘Whether the defense of the justified use of force,
properly raised at trial, has been disproved by the state
is a question of fact for the jury, to be determined
from all the evidence in the case and the reasonable
inferences drawn from that evidence. . . . As long as
the evidence presented at trial was sufficient to allow
the jury reasonably to conclude that the state had met
its burden of persuasion, the verdict will be sustained.’’
(Internal quotation marks omitted.) State v. Johnson,
71 Conn. App. 272, 280, 801 A.2d 890, cert. denied, 261
Conn. 939, 808 A.2d 1133 (2002), cert. denied, 537 U.S.
1207, 123 S. Ct. 1286, 154 L. Ed. 2d 1052 (2003).
In order to determine whether the state produced
sufficient evidence to disprove beyond a reasonable
doubt the defendant’s justification defense, we first
must set forth the defendant’s theory of defense. See
State v. Revels, supra, 313 Conn. 779. Pursuant to the
defendant’s defense of premises theory; see General
Statutes § 53a-20; he presented evidence that the victim
was a trespasser in the defendant’s home, that the victim
was bigger and stronger than the defendant, and that
the victim kept attacking him. He also produced evi-
dence that his response was necessary to prevent the
victim from committing ‘‘any crime of violence’’ and that
his response was proportional to the victim’s aggression
and the defendant’s fear for his life.
In particular, the defendant testified that the angry
victim arrived at his apartment, and repeatedly banged
on the door. When the defendant opened the door, the
victim rushed in, uninvited, and began ‘‘beating the hell’’
out of the defendant, who tried to protect himself by
hitting the victim with an umbrella and then with a
stool. The defendant and Wright repeatedly yelled at
the victim to leave the apartment. When all of these
things failed, the defendant picked up a knife off the
counter, and the victim then rushed toward the defen-
dant, head down and bent at the waist, charging full
force. Fearing for his life, the defendant testified that
he had no choice but to stab the victim in the back to
prevent serious injury to himself or to Wright.
Thus, the defendant’s theory was that he reasonably
believed that it was necessary for him to use deadly
physical force against the victim because the victim
was a trespasser and was the initial aggressor. Further,
the victim would not leave the premises, he continued
to assault the defendant, and the defendant reasonably
feared for his life. He also contended that his response
was proportional to the force being used against him.
The state introduced the following evidence to dis-
prove the defendant’s defense of premises justification
defense. The victim, followed by his wife, went upstairs
to confront the defendant about the loud music being
played and began knocking on the defendant’s door.
The defendant opened the door, and the victim yelled at
him. The defendant punched the victim, and the victim
responded in kind. The defendant then pulled the victim
into the apartment and a scuffle ensued. The defendant
repeatedly hit the victim with an umbrella. When Wright
came out of the bathroom, she saw a scuffle and stepped
between the two men. The victim pushed Wright aside,
and the defendant then picked up a stool with two
hands and began swinging it, hitting the victim between
one to four times. Fearing that the defendant would
seriously injure or kill the victim, Wright told the defen-
dant to put down the stool, and he complied.
Then, standing beside the victim, Wright grabbed the
victim by the arm, and opened the door. The victim
staggered sideways out of the apartment. The victim
was in the apartment a very short time, perhaps only
seconds, and, when he emerged, he told his wife that
the defendant had stabbed him in the back. Wright
testified that she did not see the stabbing and that she
did not see the victim bleeding. In accordance with this
testimony from Wright, the victim’s unqualified state-
ment to his wife that the defendant had stabbed him
in the back, and the defendant’s admission that he had
stabbed the victim in the back after putting down the
stool, the state argued to the jury that it would be reason-
able to conclude that the stabbing occurred after Wright
grabbed the victim by the arm and was showing him
to the door, as she stood beside him.
Construing the evidence in the light most favorable
to sustaining the verdict, we conclude that there was
sufficient evidence to disprove the defendant’s defense
of premises justification defense beyond a reasonable
doubt. The evidence was sufficient for the jury to con-
clude that the victim was neither a trespasser nor the
initial aggressor. Indeed, the testimony of the victim’s
wife established that, as she watched the victim argue
with the defendant while the victim stood outside of
the defendant’s apartment door, the defendant pulled
the victim into his apartment. Her testimony further
established that just before the defendant pulled the
victim into his apartment, the defendant punched the
victim.
Nevertheless, even if the defendant was a trespasser,
there also was sufficient evidence from which the jury
reasonably could conclude that the defendant used an
amount of force that far exceeded any necessary force.
Indeed, there was no evidence that the victim had with
him any type of weapon or that he used any weapon
against the defendant. Despite this, the defendant
admitted hitting the victim with an umbrella and with
a stool. He also admitted that he grabbed a knife and
ultimately stabbed the victim in the back with it. More-
over, the defendant was the physically weightier man
in the altercation. Although the defendant contended
that the victim was bigger and stronger than he, the
evidence demonstrated that, although the victim was
approximately one inch taller than the defendant, the
defendant was approximately twenty pounds heavier
than the victim.
Additionally, the defendant testified at trial that he
did not stab the victim until after he had put down the
stool. Wright testified that she was in the room when
the defendant hit the victim with the stool and that she
told the defendant to put down the stool, fearing that
he would seriously injure or kill the victim with it.
Wright also stated that after the defendant put down
the stool, she grabbed the victim by the arm and, while
standing beside him, opened the door for him to leave.
Wright did not see the defendant stab the victim, and
she did not see blood on the victim. The testimony
established that the victim then staggered sideways
through the doorway and told his wife that the defen-
dant had stabbed him in the back.
On the basis of this evidence and the reasonable
inferences drawn therefrom, the jury reasonably could
have concluded that the victim was not a trespasser
and that the defendant was the initial aggressor. Addi-
tionally, the jury also reasonably could have concluded
that the defendant either used force far in excess of
that used by the victim or that was reasonably necessary
to stop the victim, or that the altercation was over
before the defendant stabbed the victim in the back
as he was being led out of the doorway by Wright.
Accordingly, we conclude that the evidence was suffi-
cient to support the jury’s finding that the state dis-
proved the defendant’s justification defense beyond a
reasonable doubt.
II
The defendant next claims that the prosecutor
engaged in impropriety by (1) making claims and state-
ments during closing argument and rebuttal argument
that were conjectural and not based on facts in evi-
dence, and (2) making false statements concerning the
law.4 The state responds that the defendant has failed
to show the existence of any prosecutorial impropriety
and that, to the extent any improprieties occurred, the
defendant has failed to establish that they denied him
a fair trial. We agree with the state that the prosecutor
did not engage in impropriety.
‘‘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. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to a
fair trial.’’ (Internal quotation marks omitted.) State v.
Jordan, 314 Conn. 89, 111, 101 A.3d 179 (2014).
Our Supreme Court repeatedly has stated: ‘‘[I]n cases
involving incidents of prosecutorial [impropriety] that
were not objected to at trial . . . it is unnecessary for
the defendant to seek to prevail under the specific
requirements of [State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989)], and, similarly, it is unnecessary
for a reviewing court to apply the four-pronged Golding
test. The reason for this is that the touchstone for appel-
late review of claims of prosecutorial [impropriety] is
a determination of whether the defendant was deprived
of his right to a fair trial, and this determination must
involve the application of the factors set [forth] by this
court in State v. Williams, 204 Conn. 523, 540, 529 A.2d
653 (1987). . . . As we stated in that case: In determin-
ing whether prosecutorial [impropriety] was so serious
as to amount to a denial of due process, this court,
in conformity with courts in other jurisdictions, has
focused on several factors. Among them are 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. . . .
‘‘We emphasize the responsibility of defense counsel,
at the very least, to object to perceived prosecutorial
improprieties as they occur at trial, and 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 unfair in light of the record of
the case at the time. . . . Moreover . . . defense
counsel may elect not to object to arguments that he
or she deems marginally objectionable for tactical rea-
sons, namely, because he or she does not want to draw
the jury’s attention to it or because he or she wants to
later refute that argument. . . . Accordingly, we
emphasize that counsel’s failure to object at trial, while
not by itself fatal to a defendant’s claim, frequently
will indicate on appellate review that the challenged
comments do not rise to the magnitude of constitutional
error . . . . Put differently . . . prosecutorial [impro-
priety] claims [are] not intended to provide an avenue
for the tactical sandbagging of our trial courts but,
rather, to address gross prosecutorial improprieties that
. . . have deprived a criminal defendant of his right to
a fair trial.’’ (Internal quotation marks omitted.) State
v. Andrews, 313 Conn. 266, 280–82, 96 A.3d 1199 (2014).
‘‘Our case law on the scope of proper argument recog-
nizes a balance that must be struck. [P]rosecutorial
[impropriety] of a constitutional magnitude 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 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 prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based [on] the facts in evidence
and the reasonable inferences to be drawn therefrom.’’
(Internal quotation marks omitted.) State v. Jordan,
supra, 314 Conn. 110–11.
With these principles in mind, we first consider
whether any of the prosecutor’s remarks were
improper. If we determine that there were improper
remarks, we then will conduct a separate analysis under
the Williams’ factors to determine whether the impro-
prieties deprived the defendant of his right to a fair trial.
A
The defendant claims that the prosecutor’s remarks
during closing and rebuttal arguments were improper
because they were based on conjecture rather than on
the evidence. Specifically, he argues that the prosecutor
made ‘‘claims and statements during closing argument
and during rebuttal argument which were conjectural
and not based on the facts in evidence, including (1)
that the defendant stabbed the [victim] while he was
standing in the doorway with his back to the defendant;
(2) that the floor area near the doorway had blood
on it which the defendant had wiped off; (3) that the
defendant stabbed the [victim] after the fight had
stopped; and (4) that the defendant did not act in self-
defense, but out of a sense of humiliation from the
victim having pushed . . . Wright when she first tried
to stop the fight.’’ We will consider statement two first,
followed by statements one, three, and four together.
1
The defendant argues that the prosecutor engaged in
impropriety by arguing to the jury that the defendant
had wiped up blood from the floor area near the door-
way. The defendant cites the following specific state-
ment made by the prosecutor: ‘‘There’s no blood
splattered in the hallway area there which you would
consider probably should be there based on the other
blood spots you saw. And right outside the door it’s
also not there.’’ The state argues that this statement
had an evidentiary foundation and that the prosecutor
was encouraging the jury to consider the evidence and
to draw reasonable inferences therefrom. We agree with
the state.
At trial, two detectives testified that the floor area
near the doorway appeared to have been wiped clean
or mopped up. Detective Mark Graham testified that
he viewed a ‘‘blood-like substance’’ on the ceiling of
the apartment, which accurately was depicted in photo-
graphs he was asked to review during his testimony.
He also stated that the ‘‘foyer area in the hallway area
appeared to be mopped’’ because of the ‘‘smudginess
of dirt,’’ that the floor area also ‘‘appeared to be cleaned
up or mopped,’’ and that ‘‘[o]utside the door in the
hallway was a blood-like substance.’’ Additionally,
Detective Kimberly Biehn testified that the linoleum,
just inside the hallway, ‘‘appeared to be . . . wiped
up.’’ She also stated that the floor area inside the door-
way of the apartment appeared to have been ‘‘wiped
with something,’’ but that the kitchen floor did not
appear to have been wiped up. In addition to this evi-
dence, the defendant testified that he had cleaned the
knife after he stabbed the victim.
On the basis of this evidence, we conclude that it
was not improper for the prosecutor to have asked the
jury to consider the absence of blood in the areas that
appeared to have been wiped up. The prosecutor merely
was commenting on the evidence and the reasonable
inferences that could be drawn therefrom.
2
We next consider together the defendant’s claim that
the prosecutor engaged in impropriety by arguing to
the jury that the defendant had stabbed the victim while
he was standing in the doorway with his back to the
defendant, that the defendant stabbed the victim after
the fight had stopped, and that the defendant stabbed
the victim because he was humiliated because the vic-
tim had pushed Wright. The defendant also complains
that during his argument, the prosecutor used a
‘‘sketch’’ that was not in evidence to urge the jury to
make improper inferences that the victim was stabbed
in the back after the fight had ended.5 The state argues
that this was the prosecutor’s theory of the case and that
the remarks were grounded in the evidence, without any
objection from the defendant. We agree with the state.
The defendant argues that there was no evidence that
he stabbed the victim in the back after the fight had
ended or at the doorway. He also argues that there was
no evidence that he stabbed the victim because he was
humiliated over the victim pushing Wright. The defen-
dant places much emphasis on his own testimony that
he stabbed the victim as the victim was rushing toward
him with his back bent forward and his head down.
That, however, was not the only evidence before the
jury. Both Wright and the defendant testified that while
the defendant and the victim were fighting, Wright
stepped between the men in an effort to stop the fight,
and the victim responded by pushing Wright aside. The
defendant testified that he then hit the victim with a
stool, and that when he began to get tired from swinging
the stool, he picked up the knife from the counter. The
defendant further testified that when the victim charged
at him, he stabbed the victim. The defendant therefore
testified that the stabbing occurring after he had hit
the victim with the stool.
Wright testified, however, that she was in the room
and saw the altercation with the stool, and that she
told the defendant to stop hitting the victim with the
stool, fearing that the defendant might kill the victim,
and that the defendant complied. Standing beside the
victim, Wright then grabbed his arm and pushed him
toward the door, not having seen a stabbing or any
blood. The victim then staggered sideways out the door.
On the basis of this testimony, we conclude that it
was not improper to submit to the jury that it could
infer that the defendant got angry and, perhaps, felt
humiliated, when the victim pushed Wright aside, and
that, because Wright saw the altercation with the stool,
but did not see the stabbing, that the stabbing occurred
as she was standing beside the victim, pushing him to
the doorway, after the fight had ended. The evidence
demonstrated that the entire altercation took only sec-
onds. Accordingly, we conclude that the prosecutor did
not engage in impropriety in making these statements
to the jury during closing and rebuttal arguments.
B
The defendant next claims that the prosecutor
engaged in impropriety by making false statements con-
cerning the law. The defendant argues that the prosecu-
tor ‘‘told the jury that a person has the right to repel
an intruder into their home, but they can’t use deadly
physical force, that is, they can’t use a weapon, they
can’t cause serious physical injury.’’ (Internal quotation
marks omitted.) He argues that this statement is ‘‘not
just wrong, it is canonically wrong.’’ We conclude that
the prosecutor’s choice of words, at best, was inartful,
but that, when viewed in the context of his entire closing
argument; see State v. Otto, 305 Conn. 51, 77, 43 A.3d
629 (2012) (‘‘[a] review of the statements made by the
prosecutor, in the context of the entire closing argu-
ment, is necessary to address the defendant’s chal-
lenges’’); even if his comment was improper, that
impropriety did not deprive the defendant of a fair trial.
In this case, during closing argument, the prosecutor
stated: ‘‘Now I want to talk about the defense of justifi-
cation. You’re going to hear the court explain what’s
called the defense of justification, and basically I sug-
gest—I’m just paraphrasing what I expect the court to
say, but a person has a right to repel an intruder [in]
their home. Now they can’t use deadly physical force,
that is, they can’t use a weapon, they can’t cause serious
physical injury. So, they can repel somebody, but you
have to use physical force. And it’s kind of like, I suggest,
a continuum. If there’s a fight between a couple of
people on the street and I’m punching somebody, and
you’re punching me back, we can punch each other,
but you can’t introduce a weapon. So, it has to be equal
amount of force to equal the violence. So, if somebody
is in your home and you can just drag them by the arm
and take them out as [Wright] did do—and you heard
her today. [Wright] dragged this supposed demon, white
devil, remember the defendant’s term, white devil? She
dragged him out, and you can’t beat him up anymore.’’
The prosecutor later stated: ‘‘Ladies and gentlemen, on
the issue of disproving a defense of justification, there’s
a very important principle, I think that [it is] just com-
mon sense if you think about it. We talked about that
before. You have a right to defend yourself, but once
that threat is gone—once that threat is gone, you can’t
take retaliatory measures, you can’t take retaliatory
measures. You know, get that last good punch or kick
in as the people are leaving.’’
Our law is clear that, although ‘‘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 . . .
prosecutors are not permitted to misstate the law
. . . .’’ (Citations omitted; internal quotation marks
omitted.) State v. Otto, supra, 305 Conn. 76–77. Never-
theless, in this case, even if we were to agree that the
prosecutor made an improper comment regarding the
right of a defendant to use deadly physical force to
repel an intruder, our analysis of the Williams’ factors
leads us to the conclusion that the defendant was not
deprived of a fair trial by the impropriety.
First, the defendant did not object to the comment,
and, although the comment was not invited by defense
counsel, the extent of the alleged impropriety was not
severe or frequent. See State v. Williams, supra, 204
Conn. 540. Second, the state’s case against the defen-
dant was fairly strong, albeit relatively circumstantial.
See id. Third, although the issue of the right to use
deadly force was central to the defendant’s case, this
was one comment near the start of closing argument,
and the prosecutor clearly told the jury that he was
paraphrasing and that the court would give the jury the
necessary legal instructions. See id. Finally, as to the
Williams’ factor concerning the strength of the curative
instruction; see id.; the defendant never asked for a
curative instruction in this case. Nevertheless, the trial
court carefully reminded the jury that ‘‘[t]he lawyers
may have mentioned legal rules during their arguments.
If you find their comments on the law differ from my
explanation, you must put aside their comments.’’ Addi-
tionally, the court thoroughly instructed the jury on
the defendant’s justification defense and on the use of
deadly physical force, and the defendant has not
asserted that the court’s instructions on self-defense
were improper.6
As our appellate courts previously have stated: ‘‘[T]he
jury [is] presumed to follow the court’s directions in the
absence of a clear indication to the contrary.’’ (Internal
quotation marks omitted.) State v. Stevenson, 269 Conn.
563, 598, 849 A.2d 626 (2004). We conclude, therefore,
that the court’s instructions, when viewed in light of
the other Williams’ factors, were sufficient to cure any
harm to the defendant possibly caused by the prosecu-
tor’s remark. Consequently, the defendant was not
deprived of a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The victim and his wife previously had complained to the defendant and
his girlfriend about their loud music. The defendant, at one point, called
the victim’s wife ‘‘a devil.’’ The victim and his wife also telephoned the
police on several occasions to complain about the noise, and the police
went to the defendant’s apartment on several occasions.
2
General Statutes § 53a-20 provides: ‘‘A person in possession or control
of premises, or a person who is licensed or privileged to be in or upon such
premises, is justified in using reasonable physical force upon another person
when and to the extent that he reasonably believes such to be necessary
to prevent or terminate the commission or attempted commission of a
criminal trespass by such other person in or upon such premises; but he
may use deadly physical force under such circumstances only (1) in defense
of a person as prescribed in section 53a-19, or (2) when he reasonably
believes such to be necessary to prevent an attempt by the trespasser to
commit arson or any crime of violence, or (3) to the extent that he reasonably
believes such to be necessary to prevent or terminate an unlawful entry by
force into his dwelling as defined in section 53a-100, or place of work, and
for the sole purpose of such prevention or termination.’’
General Statutes § 53a-19 provides: ‘‘(a) Except as provided in subsections
(b) and (c) of this section, a person is justified in using reasonable physical
force upon another person to defend himself or a third person from what
he reasonably believes to be the use or imminent use of physical force, and
he may use such degree of force which he reasonably believes to be neces-
sary for such purpose; except that deadly physical force may not be used
unless the actor reasonably believes that such other person is (1) using or
about to use deadly physical force, or (2) inflicting or about to inflict great
bodily harm.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using deadly physical force upon another person
if he or she knows that he or she can avoid the necessity of using such
force with complete safety (1) by retreating, except that the actor shall not
be required to retreat if he or she is in his or her dwelling, as defined in
section 53a-100, or place of work and was not the initial aggressor, or if he
or she is a peace officer, a special policeman appointed under section 29-
18b, or a motor vehicle inspector designated under section 14-8 and certified
pursuant to section 7-294d, or a private person assisting such peace officer,
special policeman or motor vehicle inspector at his or her direction, and
acting pursuant to section 53a-22, or (2) by surrendering possession of
property to a person asserting a claim of right thereto, or (3) by complying
with a demand that he or she abstain from performing an act which he or
she is not obliged to perform.
‘‘(c) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using physical force when (1) with intent to cause
physical injury or death to another person, he provokes the use of physical
force by such other person, or (2) he is the initial aggressor, except that
his use of physical force upon another person under such circumstances is
justifiable if he withdraws from the encounter and effectively communicates
to such other person his intent to do so, but such other person notwithstand-
ing continues or threatens the use of physical force, or (3) the physical
force involved was the product of a combat by agreement not specifically
authorized by law.’’
3
General Statutes § 53a-16 provides: ‘‘In any prosecution for an offense,
justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be
a defense.’’
4
We note that the defendant did not object to these arguments at trial.
Additionally, insofar as the defendant also makes undeveloped arguments
regarding the prosecutor’s alleged mischaracterization of evidence, mischar-
acterization of defense counsel’s argument and maligning of the defendant
during closing or rebuttal argument, we have reviewed the closing and
rebuttal arguments and conclude that there is no merit to these allegations.
5
Although the record supports the defendant’s contention that the prose-
cutor used a sketch during his rebuttal argument, a copy of the sketch is
not in the record. We also note that the defendant does not assert that it
necessarily is improper for an attorney to use such visual aids. Instead, he
asserts that the prosecutor’s argument in this case was improper.
6
The court instructed the jury on the use of deadly physical force as
follows: ‘‘The penal code of Connecticut gives a person who is in his or her
home the right to use reasonable physical force against another person
when to the extent the occupant of the home reasonably believes that such
force is necessary to prevent or terminate a criminal trespass. The code
limits the use of deadly physical force against a trespasser to three factual
situations. These situations are as follows.
‘‘First, an occupant of a home may use deadly physical force against a
trespasser to defend the occupant or another person if the occupant reason-
ably believes the trespasser is using or about to use deadly physical force
or is inflicting or about to inflict great bodily harm. Second, an occupant
of a home may use deadly physical force when the occupant reasonably
believes such force is necessary to prevent an attempt by the trespasser to
commit any crime of violence. Third, an occupant of a home may use deadly
physical force to the extent the occupant reasonably believes such force is
necessary to prevent or terminate an unlawful entry by force into the home.
The homeowner or occupant may use such means as are absolutely neces-
sary, even taking a life, to prevent the intruder’s unlawful and forced entry.
The deadly force must be used solely for the purpose of resisting a forceful
and unlawful entry.
‘‘A killing is not justified if the resistance to the intruder’s entry is greater
in degree than necessary. A killing is not justified if the occupant takes an
opportunity of an unlawful entry to kill the intruder in order to gratify the
occupant’s hatred, malice, or ill will. The three justification rules that I have
just described apply to trespassers.’’ Additionally, the court gave further
instructions on each of the three factual situations that permit the use of
deadly physical force under § 53a-20. The defendant makes no claim that
these instructions were inadequate.