Opinion
AC32027
08-23-2011
STATE v. ALBINO—CONCURRENCE
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MIHALAKOS, J., concurring. I agree with the majority that the judgment of the trial court should be affirmed. I respectfully write separately because I am not persuaded by the majority's conclusion that the prosecutor violated State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002), when he argued that in order to find the defendant, Jonathan Albino, not guilty, the jury would have to find that every other witness was ''wrong.''
During the prosecutor's closing argument to the jury, he stated: ''[I]n order for you to find the defendant not guilty of the crime of murder, you have to find that everybody is wrong in this case. The police are wrong. The detectives who interviewed him are wrong. The defendant's own friends and associates are wrong. Ms. Yesenia Diaz is wrong, the interpreter. Right? And almost incredibly, you've got to find that the defendant's own statement is wrong, that he was wrong, because he didn't tell the cops that he acted in self-defense. You can't do that.''
During his rebuttal argument, the prosecutor stated: ''[Y]ou all indicated that you have a strength in judging the credibility of the witnesses. Some of you have indicated that that's a personal strength of yours. Now is the time. Ms. Yesenia Diaz is a window for you into the interview room. If you find that she's not credible, then you find the defendant's version credible, because they're in complete conflict, aren't they? They're in conflict. Ladies and gentlemen, in order for you to find the defendant not guilty you have to find that every single person in this case is wrong.''
In Singh, our Supreme Court held that it is improper to ask a witness to comment on another witness' veracity, in large part because determining the credibility of witnesses is solely within the province of the jury. As the court concluded in that case, ''[t]herefore, we reject the state's invitation to carve out an exception to the rule that a witness may not be asked to characterize another witness' testimony as a lie, mistaken or wrong. Moreover, closing arguments providing, in essence, that in order to find the defendant not guilty, the jury must find that witnesses had lied, are similarly improper.'' State v. Singh, supra, 259 Conn. 712. In its conclusion, the court specifically drew a distinction between the questioning of a witness and statements of counsel during closing argument in the present case. The threat that a jury would be improperly influenced by a prosecutor's argument is greatly reduced as compared to direct testimony from a witness concerning another witness' veracity.
In this case, during his closing argument, the prosecutor stated that the jury would have to find several testi- fying witnesses to be "wrong" in order for the jury to find the defendant not guilty. Essentially, the prosecutor's statements were intended to convey that the jury was faced with testimony by the defendant that conflicted with the testimony of other witnesses and, in fact, the defendant's own written statement that was in evidence. See State v. Stevenson, 269 Conn. 563, 584, 849 A.2d 626 (2004) (it is not improper for a prosecutor to argue that defendant's testimony is 'totally unbelievable' '' when ''it was a comment on the evidence presented at trial, and it posited a reasonable inference that the jury itself could have drawn without access to the assistant state's attorney's personal knowledge of the case'').
I concur in affirming the judgment of the trial court.