STATE v. JONATHAN ALBINO, SC 18866/18867

Judicial District of Waterbury

Criminal; Prosecutorial Impropriety; Whether Prosecutor Violated State v. Singh in Arguing that in Order to Acquit, the Jury Would Have to Find That Every Other Witness was Wrong; Whether Prosecutor's Comments Deprived Defendant of Fair Trial.  The defendant was convicted of murder, and he appealed, arguing that prosecutorial impropriety deprived him of a fair trial.  The Appellate Court (130 Conn. App. 745) rejected the defendant's claim that the prosecutor made statements that appealed to the jurors' emotions by injecting allegations that had nothing to do with his guilt or innocence, concluding that such statements simply instructed the jury that it must base its verdict on the evidence and that the state bore the burden of proof.  The court also rejected the defendant's claim that the prosecutor denigrated the integrity of defense counsel, noting a distinction between argument that disparages the role of defense counsel and argument that disparages a theory of defense.  It found that the prosecutor essentially asked the jury to focus on the evidence and not be fooled by defense counsel's arguments.  It next rejected the claim that the prosecutor improperly attempted to insert his own knowledge into the case by insinuating that a jailhouse informant witness was credible because he was not receiving any benefit for his testimony, stating that the witness had already testified that he was not receiving anything in exchange for his testimony.  The Appellate Court agreed, however, with the defendant's claim that the prosecutor acted improperly in commenting on his guilt and in attempting to influence the jury by repeatedly using the words "victim," "murder," and "murder weapon."  It determined that such comments were improper because the defendant raised a self-defense claim and the ultimate issue in the case was whether the homicide was justified.  It also found improper the prosecutor's statement during closing argument that in order to acquit the defendant, the jury would have to find that every other witness "was wrong."  In reaching this decision, it was guided by State v. Singh, 259 Conn. 693 (2002), which held that the prosecutor improperly asked the defendant to comment on the veracity of the other witnesses, compelling him to characterize as lies any testimony he disputed.  The Supreme Court noted that courts have long admonished prosecutors to avoid such statements because they distort the state's burden of proof and preclude the possibility that the witnesses' testimony conflicts with that of the defendant for a reason other than deceit.  Here, the Appellate Court ruled that Singh extended to the prosecutor's closing argument regarding the jury's weighing of the witnesses' testimony.  Nevertheless, it found that the improprieties did not deprive the defendant of a fair trial, and it affirmed the trial court's judgment.  It reasoned that the improprieties were not severe, that they were infrequent when compared to the entirety of the trial, that the state's case was strong and that the jury is presumed to have followed the court's general instructions, which provided, among other things, that the jury was the sole judge on the facts.  The Supreme Court granted the state's and the defendant's petitions for certification to appeal and will decide whether the Appellate Court properly extended the holding in Singh to the prosecutor's closing argument regarding the jury's weighing of conflicting testimony and properly determined that the defendant was not deprived of a fair trial.