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STATE v. MARTINEZ—DISSENT

McDONALD, J., with whom PALMER and ROBINSON, Js., join, dissenting.By characterizing the prosecutor’s misconduct in this case as ‘‘not particularly

severe,’’ the majority minimizes the significance of the

prosecutor’s knowing misrepresentation of the truth to

the jury about a material fact in order to support the

state’s theory of the case. In doing so, the prosecutor

perverted the effect of the trial court’s suppression of

evidence unlawfully obtained, and contorted the

absence of that evidence into the ‘‘essence’’ of the

state’s case.It is never properfor a prosecutor—a minister of justice—to advance a theory based on facts that

the prosecutor knows is false. By purposefully misleading the jury in order to fill a gap in the state’s case

caused by the suppression of evidence, the prosecutor

engaged in misconduct that was so substantial and

severe that it denied the defendant, Anthony Martinez,

his due process right to a fair trial. The majority’s conclusion to the contrary compels me to dissent.

As the majority itself acknowledges, the trial court

made it clear that the parties would only be allowed to

make references to the lack of money found on the

defendant ‘‘if clothed in the qualifying language’’ that

there was no evidence of money found. The prosecutor’s argument to the jury that there was, in fact, no

money found on the defendant, therefore, manifestly

violated the court’s unambiguous instruction. Moreover, the prosecutor then compounded this impropriety

by implying to the jury that all of the drugs and the

money were in the possession of the defendant’s alleged

coconspirator, Mari Vargas, in order to support the

state’s theory that the defendant, acting as the ringleader, sought to exculpate himself by sequestering all

of the contraband—both the drugs and the money—

with Vargas. The prosecutor intoned that such a state

of affairs only ‘‘makes sense’’ and readily acknowledged

that this arrangement formed the ‘‘essence [of] the

state’s case.’’

The majority characterizes the prosecutor’s argument

regarding this arrangement as one that simply asked

the jurors to draw on their own experience, intuition,

and common sense to determine whetherthe defendant

possessed narcotics with the intent to sell, even though

there was no evidence that the defendant had actual

possession of any narcotics or money. Perhaps in

another case a jury could reasonably draw the inference

that a person engaged in the sale of narcotics would

want to ensure that all evidence of that crime would

have been in the possession of an underling. The insurmountable problem presented by the prosecutor’s argument in this case, however, is that it was belied by the

true state of reality as known to the prosecutor. The
defendant did not make sure that all evidence related

to the crime was in Vargas’ actual possession—indeed,

he had more money in his possession than she did.1

As a minister of justice with unique duties and responsibilities to the public and the judicial system, a prosecutor‘‘has a heightened duty to avoid argument that strays

from the evidence or diverts the jury’s attention from

the facts of the case. [The prosecutor] is not only an

officer of the court, like every attorney, but is also a

high public officer, representing the people of the

[s]tate, who seek impartial justice forthe guilty as much

as for the innocent.’’ (Internal quotation marks omitted.) State v. Medrano, 308 Conn. 604, 612, 65 A.3d 503

(2013). Misrepresenting the truth to a jury is improper

conduct for any attorney, but it is particularly egregious

when done by a prosecutor.2 A prosecutor simply cannot advance a theory of the state’s case that is inconsistent with the truth. Cf. Massameno v. Statewide

Grievance Committee, 234 Conn. 539, 557, 663 A.2d 317

(1995) (prosecutor has duty ‘‘to ensure that all evidence

tending to aid in the ascertaining of the truth be laid

before the court, whether it be consistent with the contention of the prosecution that the accused is guilty’’).

Almost as significant as the misrepresentation of the

actual facts, the prosecutor’s actions deprived the

defendant of the full effect of the remedy that he had

obtained for unlawful police conduct. The $60 found

on the defendant at the time of his arrest was suppressed by the trial court as the fruits of an illegal

search. In light of that suppression, the state was tasked

with the burden of proving its case beyond a reasonable

doubt in the absence of that evidence. In arguing to the

jury that it ‘‘makes sense’’ that the defendant would

place the drugs and money in Vargas’ possession

because the defendant was the one ‘‘calling the shots,’’

the prosecutor subverted the import of the court’s suppression order by asking the jury to draw an inference

based on a fact that he knew was false.

It is plain that, when evidence is suppressed, a defendant may not use the absence of that evidence offensively as a ‘‘sword,’’ but rather may only use the

suppression of evidence as a ‘‘shield.’’ See, e.g., Harris

v. New York, 401 U.S. 222, 226, 91 S. Ct. 643, 28 L. Ed.

2d 1 (1971) (although defendant’s statements given in

violation of Miranda v. Arizona, 384 U.S. 436, 478–79,

86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966], are inadmissible

in prosecution’s case-in-chief, ‘‘[t]he shield provided by

Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances’’); State v.

Williams, 171 W. Va. 556, 560, 301 S.E.2d 187 (1983)

(‘‘[t]he exclusionary rule is a shield, and not a sword,

to criminal defendants’’). If a defendant—the intended

beneficiary of the exclusionary rule—is unable to use

the suppression of evidence offensively, the state
should not be permitted to brandish its sword in a way

that undermines the court’s suppression order.

Although ‘‘[i]t is certainly within the bounds of fair

advocacy for a prosecutor, like any lawyer, to ask the

jury to draw inferences from the evidence that the prosecutor believes in good faith might be true . . . it is

decidedly improper for the government to propound

inferences that it knows to be false . . . .’’ United

States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002).3

Because the prosecutor knew that the defendant had

money on his person at the time of his arrest, it was

improper for the prosecutor to ask the jury to draw an

inference from the misrepresentation that the defendant actually had no money on him. If ‘‘arriving at the

truth is a fundamental goal of our legal system’’; United

States v. Havens, 446 U.S. 620, 626, 100 S. Ct. 1912, 64

L. Ed. 2d 559 (1980); allowing a prosecutor to misrepresent to the jury the true facts of a case is ‘‘neither

consistent with the proper functioning and continued

integrity of the judicial system nor with the policies of

the exclusionary rules.’’ People v. Payne, 98 Ill. 2d 45,

51–52, 456 N.E.2d 44 (1983), cert. denied, 465 U.S. 1036,

104 S. Ct. 1310, 79 L. Ed. 2d 708 (1984).

When considering that not only did the prosecutor

disobey the court’s clear and explicit order regarding

proper argument with respect to this issue, in doing so

he also intentionally misled the jury to draw a false

inference, it becomes apparent that the improprieties in

this case are significantly more severe than the majority

acknowledges. Upon consideration of the factors set

forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d

653 (1987), I am compelled to conclude that there was

‘‘a reasonable likelihood that the jury’s verdict would

have been different absent the sum total of the improprieties.’’ (Internal quotation marks omitted.) State v.

Angel T., 292 Conn. 262, 287, 973 A.2d 1207 (2009);

see also id. (court gives consideration to six Williams

factors: ‘‘[1] the extent to which the [impropriety] was

invited by defense conduct or argument; [2] the severity

of the [impropriety]; [3] the frequency of the [impropriety]; [4] the centrality of the [impropriety] to the critical

issues in the case; [5] the strength of the curative measures adopted; and [6] the strength of the state’s case’’

[internal quotation marks omitted]).

In my view, only the third Williams factor weighs in

the state’s favor. The improprieties were infrequent, as

the prosecutor twice stated in closing argument that

the defendant had no money in his possession at the

time of his arrest. The fifth Williams factor is neutral;

defense counsel did object to the prosecutor’s argument, but declined the court’s request to provide a limiting instruction, out of an entirely reasonable concern

that bringing the issue to the jury’s attention would only

exacerbate the harm.

The remaining factors, however, all weigh in the
defendant’s favor. The prosecutor’s statements were

uninvited by the defense.4 Moreover, the severity of the

prosecutor’s impropriety cannot be understated. I agree

with the majority that, in the abstract, the distinction

between an argument that there was no money found

on the defendant and one that there was no evidence

of money found on the defendant may seem relatively

inconsequential. The problem created by the prosecutor’s statements in the present case, however, was not

merely a matter of semantics. As I have previously

explained, the prosecutor misled the jury to believe

that the reason there was no money in the defendant’s

possession was because the defendant was the one

‘‘calling the shots,’’ and the prosecutor perverted the

effect of the suppression of evidence unlawfully

obtained to support this theory. In doing so, the state

simultaneously undermined both the constitutional

objectives that animate the exclusionary rule and the

truth seeking function of a trial. That is quite an ignominious feat.

It cannot reasonably be disputed that whether the

defendant exercised dominion and control over the

drugs or money found in Vargas’ possession was the

central issue in the case. Given the centrality of this

issue, I disagree with the majority that the state otherwise presented a strong case. As the Appellate Court

properly reasoned, the state’s case was not particularly

strong when ‘‘[t]he evidence connecting the defendant

to the drugs found on Vargas’ person consisted largely

of circumstantial evidence based upon [the officer’s]

observations of the defendant’s movements on the park

bench from a sufficient distance that he used binoculars

to make his observations.’’ State v. Martinez, 143 Conn.

App. 541, 580, 69 A.3d 975 (2013). Indeed, because the

state could present no evidence of the defendant’s

actual possession of narcotics or money connected with

the sale of narcotics, absent the improper argument

that the prosecutor presented, the state would have had

to rely solely on these distantly observed, ambiguous

interactions between the defendant and Vargas to support its theory of constructive possession. Although

there was some evidence that may have led the jury to

draw the inference that the defendant exerted constructive possession of the narcotics and money found in

Vargas’ possession, because that was the crucial determination to be made in the case, the prosecutor’s statements certainly undermines confidence in the verdict.

Thus, in my mind, ‘‘the state’s case was not sufficiently

strong so as to not be overshadowed by the impropriety.’’ State v. Angel T., supra, 292 Conn. 293.

Accordingly, when properly viewing the impropriety

as one relating to the prosecutor’s deliberate attempt

to mislead the jury, I would conclude that there is a

‘‘reasonable likelihood that the jury’s verdict would

have been different absent the sum total of the improprieties.’’ (Internal quotation marks omitted.) State v.
Albino, 312 Conn. 763, 790, 97 A.3d 478 (2014).

I respectfully dissent.

1 Although at oral argument before this court, the assistant state’s attorney

suggested that the $25 in Vargas’ possession could have been the money

from drug transactions, the state did not present any evidence regarding

the street value of the quantity of drugs uncovered from the buyers’ car

that would support this theory.

2 The prosecutor’s misconduct not only was misleading to the jury and

prejudicial to the defendant, but also may have violated the Rules of Professional Conduct. Specifically, rule 8.4 of the Rules of Professional Conduct

provides in relevant part that ‘‘[i]t is professional misconduct for a lawyer

to . . . (3) [e]ngage in conduct involving . . . misrepresentation; [or] (4)

[e]ngage in conduct that is prejudicial to the administration of justice . . . .’’

Moreover, rule 4.1 of the Rules of Professional Conduct requires in relevant

partthat‘‘[i]n the course ofrepresenting a client a lawyer shall not knowingly:

(1) [m]ake a false statement of material fact to a third person . . . .’’ The

commentary to rule 4.1 makes clear that ‘‘[m]isrepresentations can . . .

occur by partially true but misleading statements or omissions that are the

equivalent of affirmative false statements.’’

3 See also United States v. Earle, 375 F.3d 1159, 1165 (D.C. Cir. 2004)

(closing argument improper where ‘‘the prosecutor clearly had every reason

to doubt, and no good reason to support, the inferences he propounded to

the jury’’); United States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993)

(‘‘[I]t is plainly improper for a prosecutor to imply reliance on knowledge

or evidence not available to the jury. It is all the more improper to imply

reliance on a fact that the prosecutor knows to be untrue . . . .’’ [Internal

quotation marks omitted.]); United States v. Kojayan, 8 F.3d 1315, 1321

(9th Cir. 1993) (Although it is not improper for an attorney to argue facts

he believes in good faith might be true, ‘‘[t]he government’s lawyer . . .

made factual assertions he well knew were untrue. This is the difference

between fair advocacy and misconduct.’’); United States v. Della Universita,

298 F.2d 365, 367 (2d Cir.) (‘‘[t]he prosecution has a special duty not to

mislead; the government should, of course, never make affirmative statements contrary to what it knows to be the truth’’), cert. denied, 370 U.S.

950, 82 S. Ct. 1598, 8 L. Ed. 2d 816 (1962).

4 Although the state argues that defense counsel also acted improperly

by arguing that there was no evidence that money was exchanged, this

contention fails to recognize the fundamentally differentroles that a prosecutor and defense counsel must serve during a criminal trial. Defense counsel

is tasked with arguing that, despite the evidence presented at trial, the state

failed to prove its case beyond a reasonable doubt. Arguing that the record

is devoid of certain evidence that would establish guilt is simply in accordance with defense counsel’s necessary role, which is to ask that the jury

hold the state to its burden of proof.