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STATE OF CONNECTICUT v. VICTOR JORDAN, SR.

(SC 19135)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued April 21—officially released October 14, 2014

Pamela S. Nagy, assigned counsel, for the appellant (defendant).

Robin S. Schwartz, special deputy assistant state’s

attorney, with whom, on the brief, were Maureen Platt,

state’s attorney, and Terence Mariani, senior assistant

state’s attorney, for the appellee (state).
Opinion

McDONALD, J. The defendant, Victor Jordan, Sr.,

was convicted, after a jury trial, of possession of an

amphetamine-type substance with intent to sell by a

person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and possession of an

amphetamine-type substance with intent to sell within

1500 feet of a school in violation of General Statutes

§ 21a-278a (b), on the basis of evidence seized from his

person and a closet in which he had been hiding pursuant to a search incident to his arrest.1 On appeal,2

the

defendant contends that: (1) the trial court improperly

denied his motion to suppress drugs seized from the

closet because the closet was not within his immediate

control; (2) the evidence was insufficient to support

either conviction because it did not establish his knowledge and intent; and (3) he is entitled to a new trial due

to improper comments made during the prosecutor’s

closing argument. We conclude that, even if we were

to assume that the trial court improperly denied the

motion to suppress, any error would be harmless

beyond a reasonable doubt in light of the validly seized

evidence from the defendant’s person. Although we also

conclude that this evidence, in and of itself, is sufficient

to sustain the defendant’s conviction for possession

with intent to sell, we agree that the evidence is insufficient to demonstrate the defendant’s intent to sell

within a school zone. Finally, we are not persuaded

that any prosecutorial impropriety requires a new trial.

Therefore, we affirm in part and reverse in part the

judgment.

The jury reasonably could have found the following

facts. On April 16, 2008, at approximately 7:40 a.m.,

officers assigned to a multijurisdictional fugitive task

force arrived at 555 Congress Avenue in Waterbury

looking for the defendant with the intent to arrest him

on multiple outstanding felony warrants. That address

is within 1500 feet of a public elementary school. The

task force included Lieutenant Patrick Deely of the

Middlebury Police Department, Sergeant Michael Ponzillo and Detective Orlando Rivera of the Waterbury

Police Department, and Sergeant Gerald Pinto of the

Stratford Police Department.

When they arrived, the officers approached the rear,

first floor apartment door of the two-family home and

entered an enclosed porch. The door to the apartment

was open and they began shouting ‘‘police’’ to announce

their presence. They were then met by the homeowner,

Richard Colangelo, Sr., to whom the officers showed a

photograph of the defendant. Colangelo acknowledged

that the defendant was in the home and directed them

through the kitchen to a small back bedroom. When

the officers entered the bedroom, they saw a younger

man in the room, who they later learned was the homeowner’s son, Richard Colangelo, Jr. (Richard). After
police asked Richard if the defendant was present, he

pointed toward the bedroom closet. The officers asked

Richard to leave the room and then drew their weapons,

shouting for the defendant to come out of the closet

with his hands up. When the defendant did not comply,

Pinto and Rivera entered the closet to extricate him.

After a brief struggle, the two officers pulled the defendant out of the closet into the main area of the bedroom,

at which time the other officers held him facedown on

the floor and handcuffed him, with his hands behind

his back. This process, from the time the officers

entered the bedroom to the time they subdued the

defendant on the floor, took one minute or less.

Once the defendant was removed from the closet,

Ponzillo searched him and found a small, clear plastic

bag containing thirty ecstasy3 pills in his pocket. With

the defendant still prone on the floor, two officers

searched the closet to look for a weapon. The closet

was dark and messy, and the officers needed flashlights

to conduct the search. After looking for five to ten

minutes, they recovered no weapon but discovered a

bag near where the defendant had been hiding containing three plastic bags of ecstasy pills. One bag contained seven pills, one bag contained twenty pills, and

the third bag contained 132 pills. The pills retrieved

from the closet, like the pills found in the defendant’s

pocket, all had the letter ‘‘G’’ imprinted on one side and

the silhouette of a woman imprinted on the other side.

The record reveals the following additional procedural history. Prior to trial, the defendant filed a motion

to suppress the drugs found both in the closet and on

his person. The trial court held an evidentiary hearing,

at which only the state presented witnesses. The court

thereafter denied the motion to suppress, concluding

that the searches were constitutionally permissible.

With respect to the search of the closet, the trial court

found that the defendant had been lying a ‘‘short distance’’ from the closet at the time the police searched

therein.4 The court further found that Pinto and Rivera

had gone into the closet to look for a weapon after the

defendant had been handcuffed.5 Nonetheless, the court

found that, ‘‘it [was] not inconceivable that [the defendant] may have grabbed for a gun’’ and therefore the

officers were justified in searching the immediate surrounding area for weapons. The trial court held that

the search of the closet was a lawful search incident

to arrest, relying in part on State v. Fletcher, 63 Conn.

App. 476, 777 A.2d 691, cert. denied, 257 Conn. 902, 776

A.2d 1152 (2001), a case in which the defendant also

had been handcuffed during a search of a closet that

was deemed a valid search incident to an arrest.6

Following trial, the jury returned a verdict of guilty

of both counts alleging possession of an amphetaminetype substance with intent to sell and possession of an

amphetamine-type substance with intent to sell within
1500 feet of a school. See footnote 1 of this opinion. The

trial court thereafter rendered judgment in accordance

with the verdict and imposed a total effective sentence

of eighteen years imprisonment.7 This appeal followed.

I

We begin with the defendant’s challenge to the trial

court’s decision denying his motion to suppress. The

defendant has abandoned his challenge to the seizure

of the pills from his person, limiting his claim on appeal

to the pills seized from the closet. The defendant claims

that the search of the closet was unlawful under the

fourth and fourteenth amendments to the United States

constitution and that, because the drugs found in the

closet were the fruit of an illegal search, he is entitled

to a new trial. Relying on Chimel v. California, 395

U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969),8 and

Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L.

Ed. 2d 485 (2009),9

the defendant argues that a search

incident to arrest is invalid if the search extends beyond

the area ‘‘under [an arrestee’s] immediate control’’;10

(internal quotation marks omitted) Chimel v. California, supra, 764; and that officers may not search ‘‘[i]f

there is no possibility that an arrestee could reach’’ that

area. Arizona v. Gant, supra, 339. The defendant argues

that Gant clarified Chimelto set a standard under which

a search incident to an arrest may take place only when

the arrestee is unsecured and within reaching distance

of the area searched. The defendant argues that this

standard was not satisfied in the present case because:

(1) he was lying facedown on the floor, facing away

from the closet, with his hands handcuffed behind his

back when the officers searched the closet; (2) there

were five or six officers, some armed, surrounding him

in the small bedroom; (3) he was approximately eight

feet away from the deepest part of the closet where

the drugs were found; and (4) the closet was dark,

messy and awkwardly shaped. The defendant further

contends that the police officers’ testimony indicated

that the search was not for the officers’ protection in

that they admitted to searching for a gun for five to ten

minutes after the defendant was secured and that such

a weapon search was routine procedure. Finally, the

defendant argues that State v. Fletcher, supra, 63 Conn.

App. 476; see footnote 6 of this opinion; on which the

trial court had relied, is factually distinguishable or, in

the alternative, should be overruled in light of Gant.

In response, the state argues that, under State v.

Fletcher, supra, 63 Conn. App. 476, the area within the

defendant’s immediate control includes a closet within

four feet of a handcuffed defendant. The state therefore

argues that the search of the closet in the present case

‘‘fell squarely within the authority of Fletcher and the

trial court properly relied upon it in denying the defendant’s motion to suppress.’’ The state further argues

that the defendant’s reliance on Gant as rendering
Fletcher no longer good law is misplaced. The state

acknowledges the holding in Gant that a search is

invalid if conducted after the arrestee has been secured

and cannot access the area searched, but questions

whether Gant extends beyond automobile searches. It

contends, however, that even if it does, Gant is factually

distinguishable because there was no threat to officer

safety in Gant, as there was in the present case.11 In

the alternative,the state argues that any errorin denying

the motion to suppress was harmless beyond a reasonable doubt because the jury had before it credible evidence that the defendant possessed and intended to

sell the thirty pills found in his pocket. With respect to

this alternative ground, the defendant contends that the

jury could not have determined whether the pills in his

pocket were for sale or personal use because the state

did not produce evidence of the potency of the ecstasy

pills seized.

In our view, there is no doubt that, given the defendant’s criminal history; see footnote 11 of this opinion;

the police officers had a reasonable basis to believe

that the defendant may have had a weapon in the closet.

Moreover, given the defendant’s lack of compliance

with the officers at the scene, it was reasonable for the

officers to assume that, even after being restrained, the

defendant might act irrationally by attempting to access

the closet to obtain a weapon if one had in fact been

hidden there.12 See United States v. McConney, 728 F.2d

1195, 1207 (9th Cir. 1984) (‘‘Chimel does not require

the police to presume that an arrestee is wholly rational.

Persons under stress may attempt actions which are

unlikely to succeed.’’), overruled on other grounds by

Estate of Merchant v. Commissioner Internal Revenue

Service, 947 F.2d 1390, 1392–93 (9th Cir. 1991).

Nonetheless, the facts present a close case as to

whether there was a realistic possibility that the defendant could have gained access to the closet interior

such that it could be said to be within the defendant’s

immediate control under Chimel. Because the defendant was surrounded by four police officers, some of

whom were armed, and was lying facedown with his

hands cuffed behind his back, it would have been

extremely difficult for the defendant to gain access to

the small closet in which two more officers were

located, let alone access a weapon therein. The remoteness of this possibility seems to be supported by the

fact that the officers continued to search the closet for

up to ten minutes while leaving the defendant in close

proximity rather than removing him from the scene.

We also acknowledge that the law is unsettled on

what it means for an area to be within an arrestee’s

immediate control. In particular, courts disagree over

whether there must be some realistic possibility that

the defendant would be able to reach the area searched

at the time of the search or whether such a possibility
only need to have existed at the time of arrest.13 Moreover, federal courts are split as to whether Gant established a more limited search incident to arrest standard

that is applicable in all contexts or is limited to automobile searches. See United States v. Curtis, 635 F.3d

704, 713 n.22 (5th Cir. 2011) (acknowledging split of

authority); United States v. Brewer, 624 F.3d 900, 905–

906 (8th Cir. 2010) (declining to apply Gant to search

of arrestee’s person), cert. denied, U.S. , 131 S.

Ct. 1805, 179 L. Ed. 2d 670 (2011); United States v.

Shakir, 616 F.3d 315, 318 (3d Cir.) (concluding Gant

applies beyond automobile searches), cert. denied,

U.S. , 131 S. Ct. 841, 178 L. Ed. 2d 571 (2010).

Ultimately, we conclude that the present case does

not require us to weigh in on this debate. Even if we

assume, without deciding, that the facts and the law

should have led the trial court to suppress the evidence

seized from the closet, we are fully convinced that any

improper admission of the evidence is harmless beyond

a reasonable doubt in light of the unchallenged evidence

seized from the defendant’s person.

‘‘It is well settled that constitutional search and seizure violations are not structural improprieties requiring reversal, but rather, are subject to harmless error

analysis.’’ State v. Esarey, 308 Conn. 819, 832, 67 A.3d

1001 (2013). Accordingly, we often have declined to

decide fourth amendment issues attendant to the legality of a search or seizure when it is clear that any

‘‘erroneous admission into evidence of the fruits of the

search was harmless beyond a reasonable doubt.’’

(Internal quotation marks omitted.) Id. ‘‘The harmless

error doctrine is rooted in the fundamental purpose of

the criminal justice system, namely, to convict the guilty

and acquit the innocent. . . . Therefore, whether an

error is harmful depends on its impact on the trier of

fact and the result of the case. . . . This court has held

in a number of cases that when there is independent

overwhelming evidence of guilt, a constitutional error

would be rendered harmless beyond a reasonable doubt

. . . [but] the state bears the burden of proving that

the error was harmless . . . . [W]e must examine the

impact of the evidence on the trier of fact and the result

of the trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot

be considered harmless. . . . That determination must

be made in light of the entire record [including the

strength of the state’s case without the evidence admitted in error].’’ (Citations omitted; internal quotation

marks omitted.) State v. Mitchell, 296 Conn. 449, 459–60,

996 A.2d 251 (2010).

In considering the strength of the state’s case, we

are mindful that intent is often proved by circumstantial

evidence. See State v. Lewis, 303 Conn. 760, 770, 36

A.3d 670 (2012); State v. Baldwin, 224 Conn. 347, 355,

618 A.2d 513 (1993). While ‘‘[t]he quantity of narcotics
found in the defendant’s possession [is] probative of

whether the defendant intended to sell drugs’’; (internal

quotation marks omitted) State v. Francis, 90 Conn.

App. 676, 682, 879 A.2d 457, cert. denied, 275 Conn.

925, 883 A.2d 1248 (2005); so too is ‘‘evidence that the

defendant had been a seller of narcotics in the past

. . . .’’ State v. Baldwin, supra, 355; see also State v.

Jordan, 135 Conn. App. 635, 647–48, 42 A.3d 457 (prior

misconduct evidence admissible to prove intent), cert.

granted, 305 Conn. 918, 47 A.3d 388 (2012). Evidence

of a defendant’s prior sales of narcotics ‘‘is relevant to

the nature of his possession of the drug at the time of the

alleged offense.’’ (Internal quotation marks omitted.)

State v. Baldwin, supra, 355.

We acknowledge that the state contended in its closing argument that the collective quantity of pills seized

from both the defendant’s person and the closet ‘‘in

and of itself’’ proved the defendant’s intent to sell. Nonetheless, the state offered ample additional circumstantial evidence that proved beyond a reasonable doubt

that the defendant intended to sell the thirty pills he

possessed on his person at the time of his arrest, irrespective of the pills seized from the closet, and that no

rational juror could reach a different conclusion.

The state’s expert witnesses provided uncontradicted

testimony regarding the nature of ecstasy and its general use and sale. That testimony established that

ecstasy is the street name for pills containing Methylenedioxyamphetamine, also known as MDA. Ecstasy is a

schedule 1 drug, as it has no known medical use. The

pills are not produced by pharmaceutical companies,

but by drug dealers. Although the potency of a pill can

vary depending on the amount of MDA included in the

mixture, the normal dosage is 80 to 120 milligrams. A

typical user of ecstasy will purchase one or two pills

at a time to take over the course of a single night. The

high from one ecstasy pill typically lasts four to six

hours. Drug dealers often imprint a specific stamp on

a pill to ensure that, if the buyer likes that particular

product, he or she willreturn to buy that same pill again.

The state also offered the following evidence specific

to the defendant. The thirty pills found on the defendant

appeared to be the typical dose of ecstasy, and tests

revealed the presence of MDA, although no quantitative

analysis was done to determine the specific amount of

MDA in the pills. The pills had the letter ‘‘G’’ imprinted

on one side and the silhouette of a woman stamped

on the other side. Two women who had known the

defendant prior to his arrest testified that they had seen

him in possession of, and selling, ecstasy pills in the

past with those same markings. Toni Stevens stated

that she had seen the defendant sell three to five pills

per transaction to various persons. Jennifer Campbell

stated that she had seen the defendant sell the pills for

$10 to $15 each, in strip clubs and other unspecified
places. Both women stated that they had used these

ecstasy pills supplied by the defendant. Campbell’s high

from these pills lasted six to ten hours, while Stevens’

high lasted a ‘‘couple hours.’’

In light of this evidence, we are convinced that the

state proved beyond a reasonable doubt that the thirty

pills found in the defendant’s pocket were not for his

personal use, and that the assumedly inadmissible evidence was so relatively insignificant that there is no

reasonable possibility that its improper admission

affected the jury’s verdict. In other words, we are satisfied beyond a reasonable doubt that the result would

be the same without the admission of the assumedly

improper evidence. Indeed, nothing about the facts is

consistent with the conduct of a user of the drug, and

everything about the facts is consistent with the conduct of a seller of the drug. On the basis of a typical

user’s conduct and the prices that the defendant previously had charged, the defendant was carrying on

him a fifteen to thirty day supply of the drug, with an

approximate street value of $300 to $450. His supply

contained identical markings to pills he previously had

sold, consistent with a drug dealer soliciting repeat

business. The pills in the closet were merely cumulative

of the state’s overwhelming evidence of the defendant’s

intent to sell the pills in his pocket.

The only argument advanced by the defendant to

rebut this clear and persuasive evidence is that the jury

might have concluded that the thirty pills were for his

personal use because there was no proof that the pills

were of normal potency. According to the defendant,

because ecstasy pills are homemade, the amount of

MDA in the pills seized from his pocket could have

been much lower than in the typical ecstasy pill. The

defendant posits that the pills seized could have contained an amount of MDA that would require ten pills

to obtain the effect of one typical pill, thus effectively

rendering him in possession of the equivalent of three

pills of a normal dosage. Without evidence of the pills’

dosage, the defendant argues that the jury would have

to engage in speculation and conjecture to determine

if possession of thirty pills was consistent with personal

use or with an intent to sell. We are not persuaded.

Even if the pills were diluted, it would not follow

that there exists a reasonable possibility that the defendant had no intent to sell them. Because the pills in his

possession bore the same markings as the ones the

defendant previously had sold, their street value

undoubtedly remained the same as the other pills. Furthermore, the defendant’s argument ignores that the

jury did have before it evidence from which it could

infer the general potency of the pills in the defendant’s

possession: Campbell testified that her high from one

‘‘G-lady’’ pill obtained from the defendant lasted approximately six to ten hours, and Stevens testified that her
high lasted a ‘‘couple hours.’’ Although this testimony

suggests that the pills may have affected people differently or may have been of varying degrees of potency,

it is consistent with the state’s expert testimony that

various literature indicates that the typical high from

ecstasy lasts anywhere from three to ten hours. Accordingly, even if we assume that the pills found in the closet

were not seized pursuant to a valid search incident to

an arrest, we conclude that their admission into evidence was harmless error that did not affect the verdict

in this case.

II

We now turn to the defendant’s claim that his convictions of possession of an amphetamine-type substance

with intent to sell by a person who is not drug-dependent and possession of an amphetamine-type substance

within 1500 feet of a school must be vacated because

the evidence is insufficient to sustain the convictions.

With regard to the charge of possession with intent to

sell, the defendant argues that there was no evidence

that he knew of, or exercised control over, the pills in

the closet and no evidence that he intended to sell

the pills in his pocket. With regard to the charge of

possession with intent to sell within 1500 feet of a

school, the defendant argues that the state offered no

evidence that he intended to sell the pills at 555 Congress Avenue or anywhere else within 1500 feet of the

elementary school near that location. The state concedes that the evidence was insufficient to show possession with intent to sell within 1500 feet of a school, but

argues that the evidence was sufficient to convict the

defendant for possession with intent to sell. For the

reasons set forth in part I of this opinion, we conclude

that the evidence was sufficient to show possession

of an amphetamine-type substance with intent to sell,

solely on the basis of the thirty pills found in the defendant’s pocket. For the reasons that follow, we agree

with the parties that the evidence was insufficient to

show possession of an amphetamine-type substance

with intent to sell within 1500 feet of a school.

‘‘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 [trier of fact] reasonably could have concluded that

the cumulative force of the evidence established guilt

beyond a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as

dispositive those inferences that are consistent with

the defendant’s innocence. . . . The trier may draw

whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and

logical. . . . This does not require that each subordinate conclusion established by or inferred from the
evidence, or even from other inferences, be proved

beyond a reasonable doubt . . . because this court has

held that a [trier’s] factual inferences that support a

guilty verdict need only be reasonable.’’ (Internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76,

993 A.2d 970 (2010).

To sustain a conviction for possession of an amphetamine-type substance with intent to sell within 1500

feet of a school, the state must have presented evidence

proving that the defendant had the intent to sell the

pills found on his person at some location within that

proscribed zone. See State v. Lewis, supra, 303 Conn.

771. ‘‘Quite obviously, if[a person]is apprehended while

coincidentally passing through a location, there is no

logical inference that he intended to sell at the location

of the apprehension.’’ (Internal quotation marks omitted.) Id., 773. In the present case, the defendant was

apprehended within the proscribed school zone in possession of a quantity of pills consistent with an intent

to sell. The state presented no evidence, however, from

which an inference could be drawn that the defendant

intended to sell the pills at 555 Congress Avenue or

anywhere else within 1500 feet of the nearby elementary

school. Indeed, the only evidence regarding the defendant’s past drug sales was that they had occurred at

strip clubs and other unspecified locations. Accordingly, although the evidence was sufficient for the jury

to convict the defendant of possession with intent to

sell, it was insufficient to support a conviction for possession of an amphetamine-type substance with intent

to sell within 1500 feet of a school.

III

Finally, we turn to the defendant’s claim of prosecutorial impropriety. The defendant contends that Senior

Assistant State’s Attorney Terence Mariani made

improper statements during his rebuttal argument by:

(1) improperly expressing his personal opinion about

the merits of the defendant’s claims and vouching for

the credibility of the police officers; (2) appealing to

the jury’s emotions; and (3) referring to facts not in

evidence. The defendant contends that his convictions

must be reversed because these improprieties denied

him a fairtrial. Should this court conclude that Mariani’s

remarks, though improper, did not deprive the defendant of a fair trial, the defendant contends his convictions should be reversed pursuant to this court’s

supervisory powers because of a pattern of misconduct

by Mariani in other cases. We conclude that the defendant was not deprived of a fair trial, and we decline to

exercise our supervisory powers to reverse the defendant’s convictions.

The record reveals the following additional facts. In

his closing argument, defense counsel advanced the

theory that the officers considered the defendant to be

a ‘‘bad guy,’’ and all but stated that, for that reason,
the officers had planted drugs on the defendant that

actually belonged to Richard in order to ‘‘tack on a

possession charge.’’ Defense counsel also sought to discredit Stevens and Campbell by suggesting that they

each had pending charges for which they were seeking

favorable treatment from the state. Specifically, in seeking to discredit Campbell, defense counsel stated that

the state had made an offer of accelerated rehabilitation

to her. Mariani objected, arguing that defense counsel

was referring to information that was neither in evidence nor true because Judge Damiani, not the state,

had given Campbell accelerated rehabilitation. The

court then reminded counsel that arguments are confined to the evidence.

In his rebuttal argument, Mariani made the following

remarks, with the emphasized comments indicating

those to which the defendant has objected on appeal:

‘‘You know, that—that really is outrageous, if you think

about it. Here’s police officers . . . Ponzillo, [James]

Masterson [of the United States Marshal Service] . . .

Deely . . . Rivera, sworn police officers, run around

the city trying to catch bad guys and they come in and

testify about what happened on a particular day—and

he won’t come right out and say it, but what—what’s

he saying? It’s a lie. The police officers all came in here

and perjured themselves because they wanted to get

to [the defendant]. That—that’s what they get for their

hard work. Accused of being liars, planting evidence

and making up not—not only making up lies and putting

them in a police report, but coming in here and swearing

under oath and committing perjury. Person, after person, after person committing perjury to get to [the

defendant]. Give me a break. That’s—that’s what they

get for their hard work in this city to have a defense

attorney stand up here and say, they’re all liars. Poor

[defendant], he’s a victim of circumstance. Give me a

break. . . .

‘‘And he comes in here, [the] defense attorney, and

argues things, that are not before you, why . . . Campbell got accelerated rehabilitation. That was never the

state’s recommendation. . . . There’s a lot of things—

a lot of things that go on while you people are in that

jury room and the reason they go on while you’re in

the jury room is because you’re not supposed to know

exactly what’s going on because the evidence that’s

allowed in front of you comes in front of you. It’s not

for the defense attorney to try and leak out a couple

of things and make you think that one thing happened

when maybe something very different happened here

in court. So don’t believe that nonsense.

’’And here’s the other thing. I mean, not—not only

are the Waterbury police officers and the United States

Marshals and, I guess, the Stratford police and the

Bridgeport police, because, to some extent, they all

confirmed the drugs were found in that room. They’re
all corrupt and they’re all so stupid that they couldn’t

get their stories straight when they were going to come

in here and perjure themselves. That’s the defense.

‘‘Well, how about this, how about this. How about

the fact that a month or two before, both . . . Campbell and . . . Stevens were in his presence and saw

him with the same kinds of pills. Oh, what a fantastic

coincidence. Thank God that all came together so the

police’s lie could be supported. The only reasonable

explanation here is that the police officers were telling

the truth. How could they have known—how could they

have possibly known that those G-lady pills, G on one

side and a naked lady or a lady silhouette on the other,

were going to match up to what other witnesses had

seen him with just [five], [six] weeks before? Come on.

‘‘This case is a slam dunk. The evidence is in. Don’t

let the defense attorney distract you by, you know,

trying to suggest that some underhanded things went

on that you weren’t aware of.

‘‘And don’t believe, for a second, you saw the witnesses testify, that these police officers would come in

here and risk their careers for the likes of [the defendant], don’t believe that.’’ (Emphasis added.)

Our case law on the scope of proper argument recognizes 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 prosecutor 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. Maguire,

310 Conn. 535, 553, 78 A.3d 828 (2013).

‘‘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 that impropriety was harmful

and thus caused or contributed to a due process violation involves a separate and distinct inquiry.’’ (Internal

quotation marks omitted.) State v. Stephen J. R., 309

Conn. 586, 605, 72 A.3d 379 (2013).

We conclude that the majority of the statements challenged by the defendant fell within the bounds of fair

argument, and therefore limit our discussion to those
statements that exceeded those bounds. The state concedes that Mariani’s comments about the hard work of

the police were improper. Such statements improperly

tend to suggest to the jury that it should credit the

officers’testimony due to those efforts ratherthan make

an unbiased determination as to the officers’ credibility

and whether the evidence established the defendant’s

guilt beyond a reasonable doubt. See United States v.

Aguilar, 645 F.3d 319, 324 (5th Cir. 2011) (The court

concluded that it was improper to argue that police

officers ‘‘go out there every day and do their job . . .

strive to protect people like you and me . . . put their

[lives] on the line, protecting us and our kids. And what

do they get for it? They get to come into the courtroom

and be called a liar.’’ [Internal quotation marks omitted.]); see also State v. Singh, 259 Conn. 693, 721–23,

793 A.2d 226 (2002) (concluding that it was improper

for prosecutor to appeal to jury to decide case out of

sense of duty to state).

Although the state does not concede that the argument that the officers would not have placed their

careers in jeopardy by lying was improper, we conclude

otherwise. The state is correct that a prosecutor properly may argue that a witness has no motive to lie. See

State v. Warholic, 278 Conn. 354, 365, 897 A.2d 569

(2006). That is not, however, what the prosecutor did

in this case. Had Mariani connected these comments

to a lack of motive to lie because the police were

arresting the defendant for felony charges that, in and

of themselves, carried substantial penalties, the state’s

argument might be more persuasive. The comments in

this case, however, were virtually identical to ones that

have been recognized as improperly vouching for the

credibility of the witness if there is no evidence to

support the government’s assertion regarding the officer’s potential loss of career. See United States v. Boyd,

54 F.3d 868, 871 (D.C. Cir. 1995) (citing various cases

for this proposition); see also United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir. 2005) (‘‘[T]he

prosecutor . . . clearly urged that the existence of

legal and professional repercussions served to ensure

the credibility of the officers’ testimony. That suffices

for the statement to be considered improper as vouching based upon matters outside the record . . . .’’ [Citations omitted.]); Spain v. State, 386 Md. 145, 154, 872

A.2d 25 (2005) (prosecutor transcended boundaries of

proper argument by asserting that false testimony

would expose officer to penalties of perjury and lead

to adverse consequences to his career as police officer).

The state also concedes that Mariani improperly

referred to facts not in evidence when referring to the

fact that it was Judge Damiani, and not the state, who

had offered Campbell accelerated rehabilitation. See

State v. Singh, supra, 259 Conn. 717 (‘‘[s]tatements as

to facts that have not been proven amount to unsworn

testimony’’ [internal quotation marks omitted]); State
v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987)

(‘‘[a] prosecutor, in fulfilling his duties, must confine

himself to the evidence in the record’’). We agree with

the state that, although defense counsel first referred

to this matter, the proper course would have been for

Mariani to ask the trial court to strike the improper

matter and to ask for a curative instruction rather than

to respond in kind.

Having concluded that the aforementioned comments were improper, we turn to the question of

whether these comments deprived the defendant of a

fair trial. In resolving this question, ‘‘we ask whether

the prosecutor’s conduct so infected the trial with

unfairness as to make the resulting conviction a denial

of due process. . . . We do not, however, focus only

on the conduct of the state’s attorney. The fairness of

the trial and not the culpability of the prosecutor is the

standard for analyzing the constitutional due process

claims of criminal defendants alleging prosecutorial

[impropriety]. . . . To determine whether the . . .

impropriety deprived the defendant of a fair trial, we

must examine . . . [several] factors.’’ (Citations omitted; internal quotation marks omitted.) State v. Fauci,

282 Conn. 23, 50–51, 917 A.2d 978 (2007). Among them

are ‘‘the extent to which the [impropriety] was invited

by defense conduct or argument . . . the severity of

the [impropriety] . . . the frequency of the [impropriety] . . . the centrality 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.’’ (Internal quotation marks omitted.) State v.

Maguire, supra, 310 Conn. 560; see State v. Williams,

supra, 204 Conn. 540 (setting forth these factors).

Although a defendant need not object to prosecutorial impropriety to preserve such a claim for review,

‘‘[t]his does not mean . . . that the absence of an objection attrial does not play a significantrole in the application of the [Williams] factors. To the contrary, the

determination of whether a new trial or proceeding is

warranted depends, in part, on whether defense counsel

has made a timely objection to any [incident] of the

prosecutor’s improper [conduct]. When defense counsel does not object, request a curative instruction or

move for a mistrial, he presumably does not view the

alleged impropriety as prejudicial enough to jeopardize

seriously the defendant’s right to a fair trial.’’ (Internal

quotation marks omitted.) State v. Maguire, supra, 310

Conn. 560–61.

In the present case, defense counsel did not object,

request a curative instruction or move for a mistrial.

Moreover, we are not persuaded that the Williams factors as a whole weigh in the defendant’s favor. See id.,

561 (concluding that prosecutor’s improprieties violated defendant’s right to due process when ‘‘the only

consideration that weighs in favor of the state is defense
counsel’s failure to object to all but one of the claimed

improprieties’’). Mariani’s reference to a fact not in evidence was in direct response to a similar statement by

defense counsel. Mariani’s other improper statements

about the police witnesses, however, were not invited.

Nonetheless, the improprieties occurred in rebuttal

argument and were not frequent when viewed in the

context of the entire closing argument.

Although we are troubled by Mariani’s improper

vouching for the officers’ credibility in tandem with

the suggestion that the officers’ hard work imposed

an attendant duty on the jury to credit the officers’

testimony given the importance of the officers’ testimony to the case, the trial court gave a specific instruction to the jury regarding these witnesses. Specifically,

the court pointed to the testimony of the officers, underscored that a police officer’s testimony is not entitled

to any special weight, and directed the jury to determine

the credibility of the officers in the same way and by

the same standards as it evaluated other witnesses.

Finally, the state’s evidence was relatively strong, and

the defendant’s theory that the officers had planted the

pills on him was simply not credible in light of the

circumstances. The pills found on the defendant’s person bore identical markings to those he previously had

sold, the plastic bag found on the defendant was not

the one containing the largest quantity of pills, and the

defendant already was subject to an arrest warrant on

multiple felony offenses. Accordingly, we conclude that

the defendant was not deprived of a fair trial.

The defendant nonetheless asks this court to exercise

its supervisory authority to order a new trial because

Mariani’s improper statements in the present case are

part of a larger, persistent pattern of improprieties by

him. As the state points out, however, the Appellate

Court recently took that very action in reversing a conviction obtained by Mariani when the improprieties did

not rise to the level of a due process violation. See State

v. Santiago, 143 Conn. App. 26, 47, 66 A.3d 520 (2013)

(‘‘Mariani knew or should have known that his comments exceeded the proper bounds of argument, and

the similarity of the statements that he made here to

those that previously were deemed improper by this

court or our Supreme Court indicates that the misconduct was deliberate. Mariani’s misconduct was typical

of a larger pattern of misconduct that is not likely to

be corrected absent extreme measures.’’). The state has

not appealed from that judgment. The members of this

court have every reason to expectthat the extraordinary

action by the Appellate Court with respect to Mariani’s

conduct in Santiago will serve its clearly intended purpose. Therefore, we decline to take such an extraordinary action in the present case in the interests of justice.

See State v. Payne, 260 Conn. 446, 450–51, 797 A.2d

1088 (2002) (explaining extraordinary circumstances

justifying exercise of supervisory authority to reverse
conviction in absence of constitutional violation).

IV

In light of our conclusion in part II of this opinion,

the defendant is entitled to a judgment of acquittal on

his conviction of possession of an amphetamine-type

substance with intent to sell within 1500 feet of a school.

The defendant was sentenced to a three year term of

imprisonment on that offense, to be served consecutive

to his sentence for his conviction of possession of an

amphetamine-type substance with intent to sell. ‘‘Pursuant to [the aggregate package theory of sentencing], we

must vacate a sentence in its entirety when we invalidate any part of the total sentence. On remand, the

resentencing court may reconstruct the sentencing

package or, alternatively, leave the sentence for the

remaining valid conviction or convictions intact. . . .

Thus, we must remand this case for resentencing on

the [remaining] count[s] on which the defendant stands

convicted.’’ (Citation omitted.) State v. Miranda, 274

Conn. 727, 735 n.5, 878 A.2d 1118 (2005).

The judgment is reversed only with respect to the

defendant’s conviction of possession of an amphetamine-type substance within 1500 feet of a school and

the case is remanded with direction to render judgment

of acquittal on that charge and to resentence the defendant on the remaining charges; the judgment is affirmed

in all other respects.

In this opinion ROGERS, C. J., and PALMER, ZARELLA, EVELEIGH and ROBINSON, Js., concurred.

1 The defendant was also convicted of interfering with an officer in violation of General Statutes § 53a-167a. The defendant does not challenge his

conviction of that offense.

2 The defendant appealed to the Appellate Court, and we transferred the

appeal to this court pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-2.

3 Ecstasy is the street name for a pill containing an amphetamine-type substance.

4 At the suppression hearing, Ponzillo testified that, once the defendant

was arrested, he was ‘‘maybe two to three feet’’ away from the opening of

the closet. Rivera estimated that the defendant was at least seven feet away

from the back of the closet.

5 Although Pinto’s testimony at the suppression hearing was vague, he

testified at trial that he did not wait to see that the defendant was secured

but rather began to search the closet as soon as the defendant was extricated

from it. Rivera testified that he began to search afterthe defendant was handcuffed.

6

In State v. Fletcher, supra, 63 Conn. App. 481–82, the Appellate Court

concluded that the search of a closet located within four feet of a handcuffed

defendant was a lawful search incident to arrest. In affirming the trial court’s

decision denying the defendant’s motion to suppress the narcotics and guns

found in the closet, the Appellate Court concluded that the distance between

the defendant and the closet did not suggest that ‘‘it would have been

physically impossible’’ for the defendant to reach inside the closet. Id. The

Appellate Court concluded that it was irrelevant that the defendant was

handcuffed because ‘‘it [was] not inconceivable that he may have grabbed

for a gun . . . .’’ (Internal quotation marks omitted.) Id., 482. That opinion

does not indicate whether the defendant’s hands had been cuffed in front

of or behind his body, or the number of officers guarding the defendant

during the search.

7 The courtimposed the following sentence: a fifteen yearterm ofimprisonment on count one, possession of an amphetamine-type substance with
intent to sell by a person who is not drug-dependent in violation of § 21a278 (b); a three year term of imprisonment on count two, possession of an

amphetamine-type substance with intent to sell within 1500 feet of a school

in violation of § 21a-278a (b), to be served consecutive to count one; and

a term of one year imprisonment on count three, interfering with an officer

in violation of General Statutes § 53a-167a, to be served concurrent to the

first count.

8

In Chimel v. California, supra, 395 U.S. 763, the United States Supreme

Court held that it is ‘‘reasonable for [an] arresting officer to search the

person arrested in order to remove any weapons that the latter might seek

to use in order to resist arrest or effect his escape,’’ as well as ‘‘to search

for and seize any evidence on the arrestee’s person in order to prevent its

concealment or destruction.’’ The court further held that it is reasonable

for arresting officers to search ‘‘the area into which an arrestee might reach

in order to grab a weapon or evidentiary items’’ because a ‘‘gun on a table

or in a drawer in front of one who is arrested can be as dangerous to the

arresting officer as one concealed in the clothing of the person arrested.’’

Id. But the court cautioned that a warrantless search incident to arrest is

only permissible ‘‘where the weapon or evidence is on the accused’s person

or under his immediate control.’’(Internal quotation marks omitted.)Id., 764.

9

In Arizona v. Gant, supra, 556 U.S. 335, the defendant was arrested for

driving with a suspended license, and after he was handcuffed and locked

in the back of a police car, officers searched his car and found cocaine in

the pocket of a jacket in the backseat. Relying on Chimel, the court held

that a search of a vehicle incident to arrest is only permissible when the

arrestee is unsecured and within reaching distance ofthe passenger compartment at the time of the search; id., 343; and that ‘‘[i]f there is no possibility

that an arrestee could reach into the area that law enforcement officers

seek to search, [the] justifications forthe search-incident-to-arrest exception

are absent and the rule does not apply.’’ Id., 339.

10 The defendant further contends that courts have used certain factors

to determine what constitutes an area within the defendant’s immediate

control. These factors are: ‘‘(1) the distance between the arrestee and the

place searched; (2) whether the arrestee was handcuffed or otherwise

restrained; (3) whether police were positioned so as to block the arrestee

from the area searched; (4) the ease of access to the area itself; and (5) the

number of officers.’’ (Internal quotation marks omitted.) State v. LaMay,

140 Idaho 835, 838, 103 P.3d 448 (2004).

11 Specifically, the state points out that the defendant in Gant had no

known violent history, he calmly approached the officers when asked to

do so, he was arrested ten to twelve feet from the car the officers searched,

and the officers waited to search the vehicle until after the defendant had

been handcuffed and placed in the back of a guarded police cruiser. By

contrast, the state points out that in the present case: (1) the officers were

looking to serve warrants on a violent felon; (2) the defendant was known

to have used weapons in the recent and distant past, as evidenced by his

actions underlying a prior manslaughter conviction and in a recent robbery;

(3) the defendant was located in a small, dark closet within a small bedroom;

(4) the defendant had hid to avoid detection; (5) the defendant pushed the

officers as they tried to pull him out of the closet; (6) the defendant was

less than one foot from the closet door entrance when the search first

commenced; and (7)the closet was searched within seconds ofthe defendant

being handcuffed and placed on the floor.

12 We also recognize that in light of the dangerousness associated with

custodial arrests, courts must be careful in second-guessing officers’ judgments regarding whether an area is within an arrestee’s immediate control

and whether there is some possibility that an arrestee might reach that area

to obtain a weapon. See Washington v. Chrisman, 455 U.S. 1, 7, 102 S. Ct.

812, 70 L. Ed. 2d 778 (1982) (‘‘[e]very arrest must be presumed to present

a risk of danger to the arresting officer’’); United States v. Shakir, 616 F.3d

315, 319 (3d Cir.) (‘‘where, in the heat of an arrest, an officer concludes

that a particular item is within the arrestee’s grasp, courts are extremely

reluctant to subsequently determine that the officer’s conclusion was unreasonable and thereby suppress whatever evidence may have been found’’

[internal quotation marks omitted]), cert. denied, U.S. , 131 S. Ct.

841, 178 L. Ed. 2d 571 (2010); United States v. Lyons, 706 F.2d 321, 330

(D.C. Cir. 1983) (‘‘[c]ustodial arrests are often dangerous; the police must act

decisively and cannot be expected to make punctilious judgments regarding

what is within and what is just beyond the arrestee’s grasp’’).

13 Compare Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001) (lack
of accessibility at time of search does not invalidate search, so long as

arrestee had item in his immediate control ‘‘near the time of his arrest’’),

United States v. Clemons, United States Court of Appeals, Docket No. 95-

5162 (4th Cir. December 11, 1995) (upholding search of luggage as incident

to arrest when arrestee was secured at time of arrest and could not access

luggage), United States v. Turner, 926 F.2d 883, 888 (9th Cir. 1991) (upholding search of room incident to arrest when defendant was handcuffed and

removed from room before search), and United States v. Palumbo, 735 F.2d

1095, 1097 (8th Cir. 1984) (search incident to arrest is ‘‘not constrained

because the arrestee is unlikely at the time of arrest to actually reach into

that area’’), with United States v. Myers, 308 F.3d 251, 267 (3d Cir. 2002)

(search invalid because arrestee would have had to possess qualities of

acrobat or Houdini to access bag when handcuffed behind back, lying facedown on floor and ‘‘covered’’ by two armed police officers); United States

v. Johnson, 16 F.3d 69, 71–72 (5th Cir.) (invalidating search of briefcase

because, although arrestee was not handcuffed, briefcase was not in arrestee’s immediate control when numerous officers stood between arrestee and

briefcase), decision clarified on rehearing, 18 F.3d 293 (1994), and United

States v. Lyons, 706 F.2d 231, 330 (D.C. Cir. 1983) (‘‘[t]o determine whether

a warrantless search incident to an arrest exceeded constitutional bounds,

a court must ask: was the area in question, at the time it was searched,

conceivably accessible to the arrestee—assuming that he was neither an

acrobat [nor] a Houdini ?’’ [footnote omitted; internal quotation marks omitted]), quoting United States v. Mapp, 476 F.2d 67, 80 (2d Cir. 1973).

The concurring justice cites several cases wherein courts held that a

search was valid even when the arrestee was handcuffed or otherwise unable

to access the searched area. Not only do those cases predate Gant by several

decades, they only further demonstrate that, while some courts have found

that a search is valid even when the arrestee is unable to access the area

at the time of the search, others have come to the opposite conclusion.