I. STATEMENT OF THE NATURE OF THE PROCEEDINGS

The defendant was arrested on April 2, 1996 and charged with five violations of General Statutes 21a-278 (b) prohibiting the sale of narcotics by a a person who is not drug-dependent. He was arraigned on the same day. On June 19, 1997, the defendant refused to accept a plea bargain and the case was scheduled for a trial by jury. Transcript, 6/19 at 2.

The case came before the court, Ripley, J., in the judicial district of Ansonia/Milford at Derby on November 6, 1997. Trial proceeded on November 12,13,14 and 19, 1997 with closing argument, the jury charge and a verdict on November 20, 1997. On December 17, 1997, the court heard and denied a motion for a new trial and an acquittal. T., 12/17 at 2. On February 3, 1998, the defendant was sentenced to concurrent terms on each of the three counts to fifteen years, execution suspended after ten with five years of probation. T., 2/3/98 at 7.

On February 27, 1998, this appeal was properly filed along with the required documentation. The complete transcript was received on April 27, 1998. On May 15, 1998, a motion for extension of time within which to file a brief was granted until November 30, 1998. Thereafter, this brief was timely filed in support of the defendant’s appeal.

II. STATEMENT OF THE FACTS OF THE CASE

The state’s case-in-chief was based entirely on the testimony of a single police officer who testified that he had made five controlled cocaine purchases from the defendant. T., 11/12 at 80. The defendant’s defense was one of alibi and that he was a victim of mistaken identity.

The police had targeted the defendant. T., 11/12 at 49. Officer Sherman of the Shelton Police Department testified that the area of Fourth Street and Liberty Street in the City of Ansonia had been targeted by the Valley Street Crime Unit as an area of drug trafficking. Sherman testified that the drug operation had a hierarchy consisting of street-level dealers who actually sold drugs, mid-level sergeants who delivered saleable quantities of drugs to the dealers, and high-level lieutenants who delivered bulk quantities of drugs to the sergeants. T., 11/12 at 21. He further testified that the lieutenant’s street name was "Bobby," T., 11/12 at 21, and, although being a lieutenant, this "Bobby" had sold drugs to Sherman. T., 11/12 at 55. In addition, although subject to a sustained objection and order to disregard, Sherman stated that "Bobby" was, in fact, the defendant. T., 11/12 at 21. He testified to his familiarity with the defendant resulting from simply from being around the drug-trafficking area; he stated that he knew the defendant "just from being up at the north end. I knew [who] he was." T., 11/12 at 38.

Sherman further testified that, even though the defendant was allegedly a non-street-level lieutenant, he had purchased cocaine from him on five occasions in 1997: October 30 at 6:00 to 6:15 p.m., T., 11/12 at 22-23, November 6 between 6:00 and 7:00 p.m., T., 11/12 at 26-27, November 14 around 7:00 p.m., November 29 between 6:00 and 7:00 p.m., T., 11/12 at 31, and December 5 between 6:00 and 7:30 p.m. On November 29, 1997, Sherman made his first identification of the defendant from a photographic array. T., 11/12 at 26,28,30,32,34. On March 18, 1996, Sherman made another identification of the defendant, this time in a line-up. T., 11/12 at 41. Finally, on November 12, 1997, at the trial, Sherman made a final identification of the defendant, stating that he was the individual that had sold him drugs on all five occasions. T., 11/12 at 41. Sherman was certain that on all five occasions a single person, the defendant, had been on the corner of Liberty and Fourth in Ansonia and had sold him drugs on each occasion. T., 11/12 at 65.

These identifications were made purely from the memory of Sherman based on an aggregate observation of the drug seller of no more than fifteen seconds, T., 11/12 at 51; 11/13 at 17,28. Sherman had not taken notes of the seller’s description, T., 11/2 at 64, despite being involved in a large and protracted investigation in which sixteen black males had been targeted and from whom, in addition to four females, approximately one hundred controlled buys had been made. T., 11/12 at 49-50. Furthermore, Sherman had viewed twelve to fourteen photo arrays during this investigation. T., 11/12 at 56. And yet, despite all these transactions and suspects, Sherman was able to testify that the defendant was "Bobby" even without any recollection of specifics of the alleged dates, including the day of the week, the clothing or jewelry worn by the suspect or which hand the suspect had used; T., 11/12 at 60; even though the defendant had no unusual identification characteristics. T., 11/12 at 69.

No additional identification evidence had been collected or even attempted to be collected by the police. No photographs or video had been taken, no fingerprints had been collected, no audio tape had been made even though the controlled buy was contemporaneously monitored by a remote cover team; T., 11/12 at 69; and, finally, no corroborating officer observations had been made. T., 11/12 at 75.

After the defendant was arrested in April, 1996, five months after the first alleged drug buy and four months after the last, he began his attempt to reconstruct his whereabouts.

On October 30, 1995, Janice Perry, the defendant’s wife, testified that the defendant had picked her up at work in New Haven around 5:00 p.m., they both had driven to CVS in Ansonia to purchase Halloween decorations and then immediately home to decorate their house. T., 11/14 at 28-30. She stated that they had remained home on that evening because it was "mischief night," the evening before Halloween in which people do "crazy things." T., 11/14 at 30.

On the second alleged date, November 6, 1995, the defendant was unable to document his whereabouts or call witnesses who may have remembered where he was on that date.

On November 14, 1995, the defendant could document his whereabouts because he had attended a childbirth preparation class at Yale New Haven Hospital. His wife, Janice Perry, testified that the defendant had picked her up at work around 5:00 p.m., they had driven home to Ansonia so she could change and then went directly to the class in New Haven. T., 11/14 at 30. They had arrived together before 7:00 p.m., the time the class started, and remained until 9:00 p.m., the time the class ended. T., 11/14 at 31-32. Kirsten Asmus, the class teacher, vouched for their attendance; she remembered the defendant and his wife because they were the only minority couple in attendance. T., 11/14 at 68,71. Furthermore, a class attendance record from Yale New Haven Hospital, admitted into evidence as defense exhibit C, recorded Janice Perry as being present. T., 11/14 at 69. However, hospital records do not specifically record the attendance of a woman’s husband or "coach." T., 11/14 at 80. Other students in the class also specifically remembered both the defendant and his wife; Brenda Felton, Bruce Hart and Tracy Menchetti all testified that the defendant was in the class in New Haven from 7:00 to 9:00 p.m. T., 11/19 at 43,60,71,94.

On November 29, 1995, the defendant presented evidence that he was at his father’s house, next door to his own in Ansonia, during the time in question. His father, Robert Perry, recalled the defendant watching the news with him from around 6:00 to 7:00 p.m. and then a karate action video thereafter until around 9:00 p.m. T., 11/14 at 7-9. Janice Perry verified this as she also watched the news and movie with her husband and father-in-law. T., 11/29/98 at 35-36. That evening was memorable to both witnesses for two reasons: it was the day before the defendant’s sister’s birthday and they had to use the defendant’s father’s truck because the defendant’s car was being repaired. In the afternoon of November 29, 1995 the defendant had brought his vehicle to Fitzpatrick’s, a repair shop, as testified to by Michael Gomes, an employee of that repair shop and verified by defendant’s exhibits A & B. T., 11/14 at 24. Thereafter, the defendant used his father’s truck to go with his wife to the Chapel Square Mall in New Haven to purchase a gift for his sister. T. 11/14 at 32-34.

On December 5, 1995, the defendant again attended the childbirth preparation class at Yale New Haven Hospital. He picked his wife up from work around 5:15 p.m. in New Haven, they returned home in Ansonia, then to Stop & Shop to purchase refreshments for the class and then to class in New Haven by 7:00 p.m. T., 11/14 at 37-38. Again the class teacher, Kirsten Asmus, verified their attendance, specifically recalling their presence, as well as the attendance record, defense exhibit C, recording Janice Perry in attendance. T., 11/14 at 69,72,89. Furthermore, two of the class students, Brenda Felton and Bruce Hart, specifically remembered the defendant’s presence in the class, recalling that the defendant’s wife was wearing a walking cast on her leg. T., 11/19 at 38,43,55,62,85,88.

During the trial, the state attempted to cast doubt on the testimony of the independent, non-family witnesses who had testified to the defendant’s presence at the class. The state attempted to demonstrate that Officer Sherman’s method of identification was more trustworthy because he had intended to remember his drug purchases where the witnesses had gone through the events of the relevant evenings without a specific attempt to remember the defendant. T., 11/19 at 51,80,119-123; T., 11/20 at 36. However, every class student who testified stated that they were certain of the defendant’s presence in the class and any police officer testimony to the contrary was incorrect. T., 11/19 at 55,90,127. The state also attempted to demonstrate that the defendant’s investigator’s methods of investigation had planted the memories of the class and of the defendant in the minds of the witnesses. T., 11/19 at 22-30,44; T., 11/20 at 16,34-35.

ARGUMENT

The defendant was unlawfully convicted. The defendant was denied his due process rights to a fair trial and impartial jury as well as the equal protection of the law by an unlawful method of prosecution which the trial court failed to prevent or correct. To compound the injustice, the jury returned an erroneously insufficient verdict which the trial court erroneously failed to set aside.

I. INTENTIONAL AND CONSISTENT PROSECUTORIAL MISCONDUCT COUPLED WITH THE FAILURE OF THE COURT TO PREVENT SUCH CONDUCT RESULTED IN THE DENIAL OF THE DEFENDANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO EQUAL PROTECTION AND THE DUE PROCESS OF LAW.

The state intentionally and continually attempted to portray the defendant to the jury as an individual likely to be a drug dealer. It inflamed the passion of the jury by requesting that their verdict make a statement regarding drugs and that a verdict of guilty was necessary to keep the defendant off the streets. This portrayal in the form of irrelevant, specifically-solicited direct and cross examination testimony as well as prosecutorial comments violated the defendant’s constitutional rights in two ways: (1) it was a violation of equal protection pursuant to the fourteenth amendment to the United States constitution and article first, �� 1 and 20, amendments five and twenty one of the Connecticut constitution; and (2) it was a violation of the due process clause pursuant to the fourteenth amendment of the United federal constitution and article first, � 8, of the Connecticut constitution.

A. THE STATE VIOLATED THE EQUAL PROTECTION CLAUSES BY USING, AS A METHOD OF PROSECUTION, ECONOMIC STATUS IN ORDER TO UNLAWFULLY PREJUDICE THE JURY.

The state used a method of prosecution that took advantage of economic status to incite prejudice in the jury. The state portrayed the defendant as poor and without legitimate income in order to place doubt in the minds of the jurors as to his occupation; specifically, that the only means of his support was by dealing drugs. Discrimination based on economic status is a violation of the equal protection clause.

The equal protection clause prohibits the state from conduct that is discriminatory. The federal provision provides that, "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., amend. XIV, � 1. The state provision provides that, "[a]ll men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." Conn. Const., art. I, � 1. Discriminating on the basis of economic status certainly falls within these provisions.

1. THIS COURT SHOULD REVIEW THE DEFENDANT’S EQUAL PROTECTION CLAIM UNDER EITHER THE GOLDING DOCTRINE OR THE PLAIN ERROR DOCTRINE.

Obviously, the defendant must concede that this issue was not preserved at trial. While various motions for acquittal and a new trial were made, none were based on a constitutional claim of equal protection. Therefore, the defendant seeks review of this claim under the rubric of State v. Golding, 213 Conn 233 (1989) or, in the alternative, under the plain error doctrine. Golding involves a four-prong test to determine whether an unpreserved claim can be raised on appeal: (1) the record must be adequate to review the alleged claim, (2) the claim is of constitutional magnitude alleging the violation of a fundamental constitutional right, (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial, and (4) the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. Id., at 239-240.

Regarding the first prong of the test, a transcript is all that is required for a record that may be properly examined. State v. Shanks, 34. Conn. App. 103 at 108 (1994). Golding review of a prosecutorial-misconduct claim is available where the claimed misconduct was blatantly egregious and reveals a pattern of conduct repeated throughout the trial and beyond mere isolated and brief episodes. State v. Sommerville, 214 Conn. 378 at 393 (1990); State v. Hanks, 39 Conn. App. 333 (1995). A pattern of conduct can easily be determined from the face of the transcript by examining the issues presented and comments made.

Regarding prong two, certainly the equal protection clause is a claim of constitutional magnitude While the state may claim that these issues are merely evidentiary guised in a constitutional label, see State v. Tillman, 220 Conn. 487 at 505 (1991), it is not the admissibility of the misconduct or simply that there was misconduct that is at issue. The issue is the fairness of the trial as a result of the misconduct. State v. Williams, 204 Conn. 523 at 539 (1987). Specifically, our courts have held that a distinction made between rich and poor is a violation of equal protection. Douglas v. California, 372 U.S. 353 at 355, 83 S. Ct. 814, 9 L. Ed. 2d 811, reh. denied, 373 U.S. 905, 83 S. Ct. 1288, 10 L. Ed. 2d 200 (1963)(right to counsel on appeal); Griffin v. Illinois, 351 U.S. 12 at 18, 76 S. Ct. 585, 100 L. Ed. 891 (1956); D’Amico v. Manson, 193 Conn. 144 at 147 (1984) (substantive right to appeal); Fredericks v. Reincke, 152 Conn. 501 at 505 (1965).

Regarding the third prong, that the alleged constitutional violation clearly exists and deprived the defendant of a fair trial, the state obviously and continually solicited evidence regarding the defendant’s financial status. This evidence was not admissible, nor in response to an issue raised by the defendant, nor even relevant to the case. The only purpose for deliberately reiterating that the defendant was poor was to deny him equal protection.

Regarding prong four, the defendant contends that harmlessness cannot be demonstrated where a gross violation of the equal protection clause has been facially demonstrated.

Even if this court concludes that these issues should not be addressed under the Golding doctrine, they should be reviewed under the plain error doctrine. In order to warrant such review, the misconduct "must have so pervade[d] the defendant’s trial as to have impaired the effectiveness or integrity of the judicial process." State v. Atkinson, 235 Conn. 748 (1996); State v. Joyner, 225 Conn. 450 at 473 (1993); State v. Tweedy, 219 Conn. 489 at 509 (1991). Because the misconduct, as set forth in the statement of facts, supra, and Appendix was so consistent throughout the entire trial and so wide spread, addressing not only the defendant, but also unlawful state comments on testimony and aimed at passion, the court should have, sua sponte, prohibited certain evidence and comments in order to preserve the impartiality of the proceeding. By failing to do so, the court erred in the administration of its supervisory power.

As a threshold matter, there must be state action to bring an equal protection claim. "The equal protection clauses of our state and federal constitutions are designed as a safeguard against acts of the state and do not limit the private conduct of individuals or persons. 16 Am. Jur. 2d Constitutional Law, p. 491." Lockwood v. Killian, 172 Conn. 496 at 501 (1977); see also Harris v. McRae, 448 U.S. 297 at 316-17, 100 S. Ct. 2671, 65 L. Ed. 2d 784, reh. denied, 448 U.S. 917, 101 S. Ct. 39, 65 L. Ed. 2d 1108 (1980); Savage v. Aronson, 214 Conn. 256 at 284 (1990). "In deciding whether the conduct under attack is governmental or private in nature, the United States Supreme Court has never adopted a precise, rigid test but has relied on a case-by-case approach." Lockwood v. Killian, supra, 172 Conn. at 502. However, an attorney representing the state has previously been held to constitute state action. Our state Supreme Court has specifically determined that an attorney general’s role in a case is sufficient alone to constitute state action. Id. at 502. "That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the state within the meaning of the fourteenth amendment is a proposition which has long been established by the decisions of this court." Ibid, quoting, Shelley v. Kraemer, 334 U.S. 1 at 14, 68 S. Ct. 836, 92 L. Ed. 2d 1161 (1948). Actions of both prosecutors and judges are "state action."

In the case at bar, the prosecutor was the party responsible for the introduction and solicitation of the unconstitutional testimony. Furthermore, it was the court that failed to, sua sponte, prohibit the constitutional breaches by exercising its judicial supervisory powers. Therefore, while the actions of the prosecutor are the most violative state action, the judicial non-action also falls within the definition of "state action" required to allege a violation of equal protection.

"When [state action] is challenged on equal protection grounds, [...] the reviewing court must first determine the standard by which the challenged [state action’s] constitutional validity will be determined. If, in distinguishing between classes, the [state action] either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge." D.A. Pincus & Co. v. Meehan, 235 Conn. 865 at 875 (1996), citing, Benjamin v. Bailey, 234 Conn. 455 at 477 (1995).

The proper standard in this case is that of strict scrutiny because the fundamental right to a fair trial has been violated. While the defendant recognizes that Connecticut’s courts have held, in accordance with the federal frame of analysis, that state action concerning social and economic regulation is held to the minimum scrutiny of the rational basis test, Daly v. DelPonte, 225 Conn. 499 at 513 (1993), citing, Laden v. Warden, 169 Conn. 540 at 542-43 (1975), it points out that there are specific exceptions such as when a fundamental right has been affected. G.D. Searle & Co. v. Cohn, 455 U.S. 404 at 408, 102 S. Ct. 1137, 71 L. Ed. 2d 250 (1982); Daly v. New Britain Machine Co., 200 Conn. 562 at 578 (1986). Where a fundamental right is affected, even in a case involving economic classification, strict scrutiny must be applied.

"The right to a fair trial is a fundamental liberty secured by the fourteen amendment. The presumption of innocence, although not articulated in the constitution, is a basic component of a fair trail under our system of criminal justice." State v. Prutting, 40 Conn. App. 151 at 165 (1996), quoting, Estelle v. Williams, 425 U.S. 501 at 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126, reh. denied, 426 U.S. 954, 96 S. Ct. 3182, 49 L. Ed. 2d 1194 (1976). Because the economic classification of the defendant involved his right to a fair trial, not to mention his fundamental right of liberty--to remain free; see Laden v. Warden, supra, 169 Conn. at 544; strict scrutiny must be applied to this case.

"Hav[ing] concluded that a fundamental right is implicated in this case, the state’s action is not entitled to its usual presumption of validity. ‘Strict judicial scrutiny’ requires that the state rather than the complainants to carry the ‘heavy burden of justification.’" Bruno v. Civil Service Commission, 192 Conn. 335 at 349 (1984). Therefore, although the defendant reserves to his reply brief a response to any justification presented by the state in its brief, the defendant will demonstrate here that the state action of the prosecutor does not pass the strict scrutiny analysis.

The strict scrutiny test includes two elements, both of which must be met: (1) the state action must serve a compelling interest; and (2) the action is narrowly tailored to serve that interest. Daly v. DelPonte, supra, 225 Conn. at 515. The defendant concedes that the state has a compelling interest in the protection of society; see Jones v. United States, 463 U.S. 354 at 364, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1982); Franklin v. Berger, 15 Conn. App. 74 at 79 (1988); however, it asserts that the action taken was not even remotely related to the interest.

The second prong of the test gives little leeway to the state. "If there are other, reasonable ways to achieve the state’s interests with a lesser burden or constitutionally protected activity, a state may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.’" Franklin v. Berger, supra, 15 Conn. App. at 79, citing, Shelton v. Tucker, 364 U.S. 479 at 488, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). The state must narrowly tailor its prosecution to achieve a legitimate conviction based on proper evidence and inferences therefrom.

Economic status is not the least-intrusive means of protecting society. The state cannot presume a defendant’s status makes him more likely to be guilty in order to make its prosecution more convenient. It cannot presume by a defendant’s poverty, unemployment and abode in a high-crime area that the defendant also sells drugs. Even the admission into evidence of such factors is improper. "[T]he practical result of [its admission] would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes [...]." Wigmore on Evidence, supra, � 392, quoted in, People v. Hogan, 647 P.2d 93 at 116 (Cal. 1982).

Decisions of our sister states have been even more condemning of the use of economic status as evidence. "Extreme prejudice [...] can be engendered by irrelevant questions relating to a defendant’s poverty or unemployment." People v. Jones, 251 N.W.2d 264 at 265 (Mich. App. 1976). Identical to the case at bar, "the state [...] projected before the jury the forbidden theme that defendant had no apparent means of income and hence was likely to commit a crime for dollar gain. This was improper and injurious." State v. Mathis, 221 A.2d 529 at 537-38 (N.J. 1966). Similarly, where the prosecution solicited evidence from the defendant’s girlfriend that the defendant was unemployed at the time of the charged robbery, the Michigan court reversed the conviction, stating, "Whether a defendant [...] was poor or unemployed is legally irrelevant to the issue of guilt or innocence." People v. Andrews, 276 N.W.2d 867 at 868 (Mich.App. 1979). "[W]e cannot, consistent with equal treatment to the poor and the well-to-do, indulge ourselves in the fiction that the motive of each may be shown at trial. [...] To permit this proof [...] will, without doubt, further disadvantage those least able to defend themselves in the courts. [...] We also believe that the admission of such evidence [...] would inhibit realization of a highly valued judicial goal, equality before the courts." People v. Henderson, 264 N.W.2d 22 at 25-26 (Mich. App. 1978). "[B]efore the law the rich and the poor stand alike, [...] the poverty of the defendant is not admissible to show a motive . . .." State v. Lazzaro, 171 P. 536 at 538 (Wash. 1918), quoting, Commonwealth v. Tucker, 76 N.E. 127 at 129 (Mass. 1905).

Likewise, the United States Supreme Court has determined that poverty and unemployment are neither admissible nor capable of inferring guilt. "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U.S. 429 at 433; 104 S.Ct. 1879; 80 L.Ed.2d 421 (1984). "The mere state of being without funds is a neutral fact--constitutionally an irrelevance, like race, creed, or color." Edwards v. California, 314 U.S. 160 at 184-85 (1941)(Jackson, J., concurring).

In the case at bar, the state used the most dramatic means to convict the defendant--it invoked the defendant’s economic status as a means to convict. As set forth in the statement of the facts, supra, the state continually solicited testimony of the defendant’s economic status. It asked the defendant’s father, Robert Perry, whether the defendant was working, where he got his salesman materials and how much he paid for them or how many he may have sold, how much the defendant made in 1995, whether the defendant filed a 1995 tax return, what vehicles the defendant owned. T., 11/14 at 10-13. He similarly asked the defendant’s wife, Janis Perry, about the defendant’s employment, how much of oils and clothes the defendant sold, where he got his materials and whether the witness could prove how much he had sold, and how much the defendant made in 1995. T., 11/14 at 43-46. The state also highlighted these solicitations by mentioning them in its closing, stating that there was no evidence of "distributor bills, no paychecks, no invoices, no nothing." T., 11/20 at 13; see also 10. And finally, in its closing the state told the jury what it wanted the jury to do with this financial information: "one thing strikes me as ironic is the claim of the clothing and perfume sales. He was selling [...] for no other reason than the money. You’ve heard nothing about addiction or problems or anything else. What’s left? It’s the money." T., 11/20 at 20. The state solicited information to demonstrate that the defendant was not gainfully employed and was poor. It specifically wanted the jury to take that information and conclude that the defendant must have sold the drugs because he wanted money.

The state’s solicitations and comments were by its own volition. While it is true that the defendant solicited information regarding the defendant’s family’s economic situation, this was only in response and as rebuttal to mitigate testimony previously solicited by the state. T., 11/14 at 51-52. The defendant, properly, did not even address the inadmissible and irrelevant issue in its closing.

This method of conviction was not narrowly tailored to the state’s interest in the protection of society. It is entirely over-inclusive because economic status is completely irrelevant to whether a defendant sold drugs. None of the elements of that crime even be inferred by demonstrating that a defendant is poor or without a job, especially in this case where the only challenged issue was identification. The only effect of such information is to prejudice the jury against the defendant, inciting it to conclude that, irrespective of any direct evidence, the defendant must have sold the drugs, otherwise he could not have supported himself. This is a classification that does not convict based on evidence of guilt, but one that convict based on bias and stereotypes.

Furthermore, there are numerous other methods by which the state could have lawfully proven guilt. "The state’s legitimate interest in proving the defendant’s [identification] could have been served by carefully framed questions that avoided any mention of the defendant’s [economic status]. State v. Hull, 210 Conn. 481 at 490 (1989)(state’s attempt to solicit evidence of defendant’s exercise of constitutional rights to demonstrate behavior at time of arrest unlawful); see also Jenkins v. Anderson, 447 U.S. 231 at 295, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). Simply refraining from prejudice and relying on evidence is one. Another would be to collect more conclusive evidence. If the state finds it difficult to convict based on a sole identification of a defendant by an officer who had only a few seconds of observation, it could easily collect corroborative evidence. Technology of today would easily have enabled the videotaping of Officer Sherman’s controlled buys. Unwillingness to use other available means does not discount the prejudice suffered from over inclusive methods of prosecution.

Because the state’s method of prosecution was not related to its legitimate interest and because there were other less-intrusive means of fulfilling that interest, the state’s use of economic classification was a violation of equal protection.

Even if this Appellate Court determines that strict scrutiny should not apply in this case, the state action will not pass the lower standard of rational basis. "Under the rational basis test, the court’s function is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way." D.A. Pincus & Co. V. Meehan, supra, 235 Conn. at 875. This minimum scrutiny is passed if there is a plausible policy reason for the classification which is neither arbitrary nor irrational. Id. at 876. The defendant asserts that the use of an economic classification to convict a defendant is both arbitrary and irrational. There is no relationship between economic status and dealing drugs. "Classifications based on wealth have been struck down as constitutionally invidious discrimination. Laden v. Warden, supra, 169 Conn. at n. 2, citing, Tate v. Short, 401 U.S. 395 at 398, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971); Griffin v. Illinois, supra, 351 U.S. at 19.

Without any basis in law or any legitimate purpose whatsoever for classifying defendant’s economically, the state action of the prosecutor in this case was a violation of equal protection.

B. THE STATE’S PROSECUTION OF THE DEFENDANT IN THIS CASE WAS SO EGREGIOUS THAT IT DENIED HIM HIS RIGHT TO A FAIR TRIAL AND IMPARTIAL JURY IN VIOLATION OF DUE PROCESS.

The state’s prosecution of the defendant was done in such a way as to prejudice the jury against him and deny him of a meaningful hearing.

Due process of law is an inviolate right of every criminal defendant. The federal constitution prohibits any state from "depriv[ing] any person of [...] liberty [...] without due process of law." U.S. Const., amend. XIV. Likewise, the state constitution provides to an accused in criminal prosecutions the right "not to "be deprived of [...] liberty [...] without due process of law."

Due process requires specific guarantees in a criminal jury trial. "In essence the right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial ‘indifferent’ jurors." Irvin v. Dowd, 366 U.S. 717 at 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); State v. Lopez, 235 Conn. 487 at 523 (1995); see also Conn. Const., art. I, � 8, as amended. "Due process means a jury capable and willing to decide the case solely on the evidence before it." State v. Phillips, 455 U.S. 209 at 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1981); State v. Glenn, 194 Conn. 483 at 493 (1984).

Furthermore, a criminal defendant cannot be compelled to give evidence against himself. This also is a protection afforded by the due process clause and specifically enumerated in constitutional provisions. U.S. Const., amends. V & XIV; Conn. Const., art. I, � 8, as amended.

Due process provides a criminal defendant with specific protections: (1) a fair trial, (2) an impartial jury, and (3) freedom from self-incrimination.

2. THE DEFENDANT’S CLAIMS OF PROSECUTORIAL MISCONDUCT ARE REVIEWABLE BY THIS APPELLATE COURT.

Obviously, the defendant failed to preserve this issue at trial. While motions to set aside the verdict and for a new trial were made by the defendant, the issue of prosecutorial misconduct was not raised. Neither were any objections made on that basis. However, lack of contemporaneous objection to alleged prosecutorial misconduct does not preclude review of a claimed error. State v. Findlay, 198 Conn. 328 (1986). This claim is independently reviewable under State v. Golding, supra.

The state Supreme Court has specifically determined that cases such as the one at bar are reviewable under this doctrine. State v. Williams, supra, 204 Conn. at 536 (applying the doctrine of State v. Evans, 198 Conn. 328 at 344 (1986), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 921 (1986)); see also State v. Couture, 194 Conn. 530 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); State v. Pelletier, 196 Conn. 32 at 33-34 (1985). This case falls squarely within the holding of Williams, supra, because the misconduct was not merely an isolated or singular statement, but rife throughout cross-examination of the defendant’s familial witnesses and the state’s closing arguments. Furthermore, the misconduct was blatantly egregious. Therefore, review and reversal in the present case is appropriate.

3. THE STATE’S PROSECUTION OF THE DEFENDANT’S CASE WAS A SEAMLESS WEB OF MISCONDUCT SPANNING THE ENTIRE PROCEEDING.

The state, as represented by the prosecutor, can deny a defendant’s right to due process at trial by engaging in misconduct that prejudices the jury or misdirects their fact finding role with extraneous matters that should not have been considered.

(a) AS A REPRESENTATIVE OF THE STATE, A PROSECUTOR HAS A SPECIAL DUTY TOWARD JUSTICE, BUT IS ALSO IN A SPECIAL POSITION TO PERVERT IT BY MISCONDUCT.

The state, as represented by the prosecutor, has a duty to uphold the constitutions. "By reason of his office, [the prosecutor] usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment." State v. Couture, supra, 194 Conn. at 564. See also Berger v. United States, 295 U.S. 78 at 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); ABA Standards, 3-5.8 (c). "The role of the prosecutor is different from that of an ordinary advocate for the prosecutor’s duty is to see that justice is done." State v. Floyd, 10 Conn. App. 361 (1987).

In order to uphold his duties, a prosecutor must refrain from certain tactics at trial. Generally, he must not attempt to arouse prejudice in the jury; State v. Williams, supra, 204 Conn. at 545; State v. Couture, supra, 194 Conn. at 562; State v. Falcone, 191 Conn 12 at 22 (1983); State v. Carr, 172 Conn. 458 at 470 (1977); ABA Standards, supra, 3-5.8 (c); or divert it from their duty to base their conclusions on the evidence actually presented at trial. State v. Couture, supra, 194 Conn. at 562; State v. Carr, supra, 172 Conn. at 470. Specifically, this requires a prosecutor to:

1. Refrain from character assassination and vitriolic personal attacks on the defendant. State v. Rogers, 207 Conn. 646 at 654 (1988).

2. Refrain from stigmatizing the defendant. State v. Couture, supra, 194 Conn. at 562, quoting, Commonwealth v. Capalla, 185 A. 203 at 206 (1936).

3. Refrain from injecting extraneous issues into the case. State v. Williams, supra, 204 Conn. at 547; ABA Standards, supra, 3-5.8.

4. Refrain from attempting to introduce obviously inadmissible evidence. State v. Williams, supra, 204 Conn. at 538; State v. Binet, 192 Conn. 618 at 628 (1984); State v. Baker, 182 Conn. 52 at 58 (1980); State v. Hafner, 168 Conn. 230 at 249, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); State v. Ferrone, 96 Conn. 160 at 168-69 (1921).

5. Refrain from vouching for the credibility of a witness. United States v. Modica, 663 F. 2d 1173 at 1181 (2d Cir. 1981); United States v. Drummond, 481 F. 2d 62 (2d Cir. 1973); State v. Williams, supra, 204 Conn. at 541; State v. Wiedl, 35 Conn. App. 262 at 268-69 & n. 3 (1994); ABA Standards for Criminal Justice (Second), The Prosecution Function 3-5.8 (b) (1985).

6. Refrain from using a defendant’s postarrest silence to imply guilt. Doyle v. Ohio, 426 U.S. 610 at 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Cooper, 227 Conn. 417 at 437 (1993); State v. Ricketts, 37 Conn. App. 749 at 758-60 (1995).

7. Refrain from commenting upon or suggesting an inference from facts not in evidence. State v. Williams, supra, 204 Conn. at 538, 544; State v. Ruiz, 202 Conn. 316 at 329 (1987)(prior oral inconsistent statements not to be used substantively); State v. Ferrone, supra, 96 Conn. at 168-69; ABA Standards, supra, 3-5.8 (a).

Failure to refrain from any of these forms of misconduct can possibly result in a denial of a defendant’s due process rights.

(b) THE STATE CREATED A WEB OF MISCONDUCT TO CAPTURE THE JURY ON IMPROPER GROUNDS.

In the case at bar, the state repeatedly transgressed the boundaries of proper prosecution of a case against an accused. It not only made improper inflammatory comments, but also deliberately portrayed the defendant as a criminal that should be incarcerated to protect the public.

(1) THERE WAS A SEAMLESS WEB OF PROSECUTORIAL MISCONDUCT THAT SOUGHT TO CREATE AN IMPROPER INFERENCE THAT THE DEFENDANT MUST BE GUILTY OF DEALING DRUGS, IRREGARDLESS OF WHETHER THE DEFENDANT WAS GUILTY OF THE ALLEGATIONS IN THIS TRIAL.

The thrust of the state’s misconduct was to stigmatize the defendant as an obvious drug dealer. From the very beginning of the case, the state made its theme well known by its continued solicitation of testimony that established the defendant fit a typical drug profile. The questions and comments toward that end were irrelevant testimony that should have been excluded. However, it provided the jury with extraneous information which would distract them from determining the real issue of identity and encourage them to determine that the defendant must be guilty in any case, irregardless of the specific allegations of the trial.

The creation of the drug profile began with the state’s first witness who testified, without corroborative evidence, that the police had specifically targeted the defendant as a lieutenant in an organized drug-selling operation. T., 11/12 at 21,49. The state continued this theme throughout cross examination. It solicited testimony that the defendant was not employed, that he claimed to be self-employed but actually made no profit from that endeavor and that he had no taxable income during the year in question. T., 11/14 at 10-13,43-47. The state then honed the issue by establishing that, despite having no income, the defendant had assets such as an apartment and a car. T., 11/14 at 12-13,49. None of this information was first solicited nor was this issue first addressed by the defendant. In fact, the defendant twice objected to this line of questioning as irrelevant when it was first raised by the state. T., 11/14 at 11.

To demonstrate the opportunity and further implicate the likelihood that the defendant was a drug dealer, the state made improper and irrelevant comments that the defendant’s neighborhood was a high crime area in which citizens had called to complain about drug trafficking. T., 11/14 at 17,58.

As if the inference were not strong enough, the state commented that the defendant had a beeper, a fact that was not in evidence. T., 11/14 at 14. A beeper is a device obviously and often associated with the drug trade, as the trial court noted in discussion outside the presence of the jury. T., 11/14 at 14. While an objection was sustained and the question ordered stricken, the unmistakable inference remained.

The state also managed to introduce evidence to show that the defendant was a likely criminal. It introduced evidence that the defendant was at one point in police custody and reiterated this fact in its closing. T., 11/14 at 63; 11/20 at 7. While this information was allowed by the court over the objection of the defendant, its admissibility remains suspect as the purpose of the inquiry was to impeach the witness’ memory which did not require evidence as to where the defendant was on a certain day only that he was somewhere other than where the witness had remembered him to be.

In its closing, the state removed any subtlety that may have existed to the innuendo of drug profile it had created. It suggested that the defendant was "on the streets" and that his witness was trying to keep him there. T., 11/20 at 13. It further addressed the issue of the defendant’s self-employment, an issue it had solicited and developed, and asked why no corroborative evidence of this employment had been offered by the defendant. T., 11/20 at 13. Finally, it stated the leap that it wished the jury to make: there was no self-employment; therefore, in order to have what the defendant had, he must have been selling "poison, misery and death." T. 11/20 at 20. The state wanted the jury to conclude that the defendant must be a drug dealer "on the streets" because he was unemployed, he had property, he lived in a drug-trafficking neighborhood, he had a beeper, and he’d previously been in policy custody.

This inference is improper because it is based on information that is extraneous and inadmissible to the proceeding. The only issue in the present case was the identification of the defendant. The fact that Officer Sherman had purchased cocaine from someone on the dates in question was not challenged by the defendant. The only defense presented was that the individual who sold the drugs was not the defendant because he was elsewhere at the time and, therefore, that Officer Sherman’s identification of him was erroneous.

The questions that solicited the information which built this inference were improper because of their "probable impropriety--" there was no legitimate reason for them to be asked. See State v. Shanks, supra, 34 Conn. App. at 110. In addition, it has been held that a deliberate effort to influence a jury with inadmissible evidence is misconduct. Ibid. The defendant submits that a continued theme, such as existed in this case, consistently raised as the first questions from witnesses, demonstrates the deliberateness of this misconduct.

(2) ADDITIONAL PROSECUTORIAL MISCONDUCT FURTHER MISDIRECTED THE JURY FROM ITS TASK OF DETERMINING A PROPER VERDICT.

Even if the attempt to stigmatize the defendant as a drug dealer is not enough misconduct to raise the issue of due process, there was additional misconduct that further deteriorated the impartiality of the jury.

The state repeatedly commented on the defendant’s failure to testify at trial in violation of the defendant’s right to be free from self-incrimination. The state did this by continually commenting in closing that the defendant failed to present evidence of gainful employment, T., 11/20 at 13, or of an alibi for November 6, 1995. T., 11/20 at 19-20,36. Furthermore, it concluded that "[the defense] has been working on this [case] since March 1996 and this is all they’ve come up with." T., 11/20 at 33. The defendant asserts that this is a comment on his silence which has been specifically prohibited by the United States and Connecticut Supreme Courts from being used "to imply guilt." Doyle v. Ohio, supra, 426 U.S. at 619; State v. Cooper, supra, 227 Conn. at 437.

The state vouched for the credibility of its chief witness, Officer Sherman, stating that he was a person of integrity. T., 11/20 at 8. In State v. Sherman, 38 Conn. App. 371 at 397 (1995), this Appellate Court determined that the state committed misconduct when it stated, "I respectfully submit to you--I respectfully submit for your consideration, that [the witness] told you the absolute truth [...]." In that case, at least the prosecution prefaced its comments with a statement that they were submitted to the jury. In the case at bar, the state specifically and unconditionally stated that its witness had integrity which, by the definition of that word, is the same as stating that the witness is credible and should be believed. Likewise, in State v. Wiedl, supra, 35 Conn. App. at 269, the prosecution stated, "I believe everything that [the witness has] said is the truth." While this statement alone was not prejudicial, it was determined by this Appellate Court to be improper misconduct.

The state requested that each defense witness characterize the testimony of the state’s chief witness. Our Supreme Court has specifically disapproved of such a procedure, especially where the central issue of the case is one of credibility. State v. Harvey, supra, 27 Conn. App. at 180-81; see also State v. Schleifer, 102 Conn. 708 at 723 (1925).

Finally, and perhaps most notoriously, the state appealed to the emotions of the jury, asking them to send a message in their verdict to drug dealers. It stated: "I urge you to say by your verdicts that [...] you don’t want drug dealers on the street." T., 11/20 at 20.

In conclusion, the state spun a web of extraneous facts that lured the jury into believing that the defendant must be a drug dealer, irregardless of the formal allegations in the case at bar. That disguised snare alone is evidence of a pattern of misconduct. When viewed in combination with the other independent strands in the web, the severity of the misconduct is unmistakable.

4. THE STATE’S MISCONDUCT SO POISONED THE PROCEEDING AGAINST THE DEFENDANT THAT THE TRIAL WAS CONSTITUTIONALLY UNFAIR AS A DENIAL OF DUE PROCESS.

The constitutional inquiry does not end with a determination that prosecutorial misconduct existed. Its existence is merely a threshold to the constitutional issues. To be a violation of due process, the misconduct must be so egregious that no curative instruction could reasonably be expected to remove its prejudicial impact.

To determine the existence of a due process violation resulting from prosecutorial misconduct, an appellate court focuses on the effect of the conduct on the trial. It must determine whether the state’s conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainright, 477 U.S. 168 at 181, 106 S. Ct. 2464, 80 L. Ed. 2d 223 (1986), quoting, Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d (1974); State v. Williams, supra, 205 Conn. at 539-40; State v. Hawthorne, 176 Conn. 367 at 372 (1978). It is "the fairness of the trial and not the culpability of the prosecutor that is the standard for [...]" determining whether due process was, in fact, violated. State v. Williams, supra, 204 Conn. at 5539; State v. Doehrer, 200 Conn. 642 at 654 (1986); State v. Palmer, 196 Conn. 157 at 163 (1985); State v. Ubaldi, 190 Conn. 559 at 562, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).

While some misconduct is easily remedied by a curative instruction, serious prosecutorial misconduct cannot. "[A] curative instruction is not inevitably sufficient to overcome the prejudicial impact of inadmissible evidence [...]. ‘It must be remembered that after the saber thrust, the withdrawal of the saber still leaves the wound.’" State v. Binet, supra, 192 Conn. at 633, quoting, United States v. Rudolph, 403 F. 2d 805 at 807 (6th Cir. 1968). Serious misconduct, therefore, poisons the fairness of the trial because its sting cannot be removed from the jury.

Whether the trial was fair or the jury was irrevocably poisoned by misconduct is determined by focusing on a number of factors:

1. The extent to which the misconduct was invited by defense conduct or argument." State v. Williams, supra, 204 Conn. at 540; State v. Fullwood, 194 Conn. 573 at 585 (1984); State v. Falcone, supra, 191 Conn. at 23.

2. The severity of the misconduct. State v. Williams, supra, 204 Conn. at 540; see also United States v. Modica, supra, 663 F. 2d at 1181.

3. The frequency of the misconduct. State v. Williams, supra, 204 Conn. at 540; State v. Couture, supra, 194 Conn. at 562-63.

4. The centrality of the misconduct to the critical issues in the case. State v. Williams, supra, 204 Conn. at 540; see also Hawthorne v. United States, 476 A.2d 164 at 172 (D.C. App. 1984).

5. The strength of the curative measures adopted by the trial court. State v. Williams, supra, 204 Conn. at 540.

6. The strength of the state’s case. State v. Williams, supra, 204 Conn. at 540; State v. Glenn, supra, 194 Conn. at 492; State v. Couture, supra, 194 Conn. at 563.

No single factor is determinative of the issue; each one must be weighed in the totality of the proceeding. The ultimate question is whether the misconduct was so frequent and so severe that any curative action that was taken was unable to eliminate the accumulated harm. State v. Williams, supra, 204 Conn. at 549.

The burden of proving that the trial was unfair normally remains on the defendant who must demonstrate "that the prosecutor’s remarks were prejudicial in light of the entire proceeding." State v. Ubaldi, supra, 190 Conn. at 562; State v. Kinsey, 173 Conn. 344 at 348-49 (1977). However, "it is well established that serious prosecutorial misconduct, regardless of the prosecutor’s intentions, may so pollute a criminal prosecution as to require a new trial, even without regard to the prejudice to the defendant. Crucial considerations in appellate adjudication of such questions are not only needed, where demonstrated, to discipline prosecutors where reprehensible conduct is present but to assure ultimate fairness to the defendant." State v. Couture, supra, 194 Conn. at 563; State v. Binet, supra, 192 Conn. at 629; State v. Hafner, supra, 168 Conn. at 251.

An analysis of the factors to determine the fairness of the trial demonstrate that the state’s misconduct irrevocably poisoned the proceeding.

None of the extraneous issues raised or improper comments made by the state were first raised by the defendant. The extraneous matters of the defendant’s lack of work and attempted self-employment, possession of assets and a beeper, 1995 income, the character of the neighborhood, that the defendant had been targeted by police because he was a known drug lieutenant and that he had been in police custody at one time were all raised for the first time on cross examination. The defendant did not attempt to use these in his defense or raise them for any other purpose. Regarding the absence of an alibi on November 6, 1995, while the defendant discussed this issue with the jury in closing, he conceded that something could not be created which did not exist. However, that was a concession, not an invitation to the state to demand an explanation for that day. The defendant placed only one issue in question: the identification of the defendant, which necessarily includes the issue of credibility of his alibi witnesses. All of these additional matters were independently raised by the state.

The misconduct was severe because it requested the jury to focus on something that was neither at issue nor proper: whether the defendant was a likely drug dealer. The state wanted the jury to disregard whether the defendant actually sold drugs on the dates alleged and focus on whether he was, in fact, a drug dealer and, therefore, should be in jail. The state solicited strand after strand of testimony that built its web, a trap to ensnare both the jury process and the defendant. The additional misconduct, such as vouching for the credibility of Officer Sherman and requesting the jury make a statement with their verdict merely added to the strength of the web.

The misconduct was frequent. It began with the state’s first witness, and proceeded as the first cross-examination questions to the defendant’s familial witnesses. The misconduct was the theme of the state’s closing, right down to its final conclusion and request to the jury. The misconduct was, in fact, the state’s theory of the case: the defendant was a drug dealer.

The critical issues of the case were the credibility of the witnesses. The separate issues of the credibility of each witness were directed to the central and only fact to be determined by the jury: the identification of the defendant. Yet, the final determination, based on a guilty verdict, would be that the defendant was a drug dealer. Therefore, the web of misconduct attempting to immediately focus the jury’s attention of whether the defendant was a drug dealer was central to a finding of guilt; it enabled the jury to skip the proper issue of identification of the defendant and jump to an improper conclusion not based on either the evidence to be considered or the charges presented.

The curative measures by the court certainly were not enough to release the jury from the web that had been spun around them. Other than the direction not to speculate on the answer to the beeper question, the court’s only curative measure of the misconduct was in its charge to the jury. However, the charge was simply the standard directions, without any special mention of the conduct that had occurred. To the contrary, the court directed the jury to "consider all of the evidence [...] whether it was presented by the state or whether it was presented by the accused." T., 11/20/95 at 38. In doing so, and without cautioning against using the extraneous and irrelevant evidence that was admitted, the court told the jury that all the evidence concerning the defendant’s likelihood of being a drug dealer should be considered.

The state’s case was not very strong. The split verdict demonstrates that the jury was not entirely convinced by the state’s evidence, even including its misconduct. In essence, the state had only one witness who had fifteen seconds of contact, allegedly with the defendant, over five occasions during which time he had approximately one hundred similar contacts with others. The state’s witness took no written notes of the contacts and could remember no specifics of them other than that the defendant was allegedly the person, even though he had no unusual identifying marks. Even without contradictory, alibi testimony the evidence was not substantial or conclusive against the defendant. Although, he had to reconstruct his whereabouts months afterwards, the defendant submitted independent testimony that he was elsewhere on two occasions. This alone substantially discredits the identification of the defendant. Combined with other, admittedly biased, witnesses on two other occasions creates serious doubt as to the proper identification of the defendant by the state’s witness.

The totality of these factors demonstrates that the misconduct was, in fact, prejudicial. It was so severe that curative action could not have preserved an impartial jury.

CONCLUSION