STATE v. GARY D. GIBSON, SC 18402
Judicial District of New Britain
Criminal; Prosecutorial Impropriety; Whether Prosecutor's Use of Words "I Think" While Marshaling Evidence During Closing Argument was Prosecutorial Impropriety; If so, Whether Impropriety Deprived Defendant of Due Process Right to Fair Trial. The defendant was convicted of failure to appear in the first degree as a result of his failure to attend a court proceeding on May 5, 2006, associated with a stalking charge against him. The defendant appealed from the conviction, alleging that certain remarks by the prosecutor during closing argument amounted to prosecutorial impropriety and that, as a result, he was denied his due process right to a fair trial. Specifically, the prosecutor stated: "Did the defendant wilfully fail to appear in court on May 5, 2006? I think he did. Is it safe to assume [that the defendant], sometime after May 5, when he realized that he got rearrested, conveniently came up with the new court date of May 16? I think it's pretty safe to assume that, ladies and gentlemen." The defendant argued that the prosecutor's remarks were improper because a prosecutor is not permitted to inject a personal opinion regarding a defendant's guilt or a witness' credibility into closing argument. The state claimed that the statements were isolated instances and were proper rhetorical devices used while marshaling the evidence in the case. The Appellate Court agreed (114 Conn. App. 295) with the defendant that the prosecutor's use of the words "I think" constituted prosecutorial impropriety. The court noted that the present case was unlike State v. Moody, 77 Conn. App. 197, cert. denied, 264 Conn. 918 (2003), in which it held that the prosecutor's use of the phrases "I believe" and "I feel" to comment on the evidence was not improper argument because the comments in Moody clearly related to the strength of the evidence and not to the prosecutor's personal belief about the defendant's guilt. In the present case, however, the court noted that the prosecutor used the phrase "I think" more than once to comment on the element of wilfulness, which was the only contested element of the crime. The court then concluded that because the impropriety was central to the critical issue of whether the defendant wilfully failed to appear, and the state's evidence on that issue was not strong, the impropriety was so serious as to amount to a denial of the defendant's due process right to a fair trial. The state petitioned for certification to appeal from the decision, which the Supreme Court granted as to whether the Appellate Court properly determined that the prosecutor's two uses of the words "I think" while marshaling the evidence during closing argument amounted to prosecutorial impropriety; and, if so, whether the Appellate Court properly concluded that the alleged impropriety deprived the defendant of the due process right to a fair trial.