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State v. Guerrero
STATE OF CONNECTICUT v. LEON L. GUERRERO
(SC 21059)
Mullins, C. J., and McDonald, D’Auria, Ecker,
Alexander, Dannehy and Bright, Js.*
Syllabus
Convicted, after a jury trial, of murder in connection with the shooting death of the victim, the defendant appealed. The shooting arose from a verbal exchange and physical altercation involving the defendant, F and M. During an argument in which the defendant and F exchanged insults, the defendant indicated that he had a gun in his car, which was parked nearby. The defendant and F began fighting. M then attempted to break up the fight, and the defendant challenged M to fight. Both F and M tried to leave in their car, but the defendant engaged them further, and a melee involving the defendant, F and M ensued. At some point, the defendant retrieved his gun, and then others, including the victim, arrived on the scene, ran toward the melee, and, as they got close, the defendant fired his gun. The bullet ultimately struck the victim and killer her. At the defendant’s probable cause hearing, at which the state called M to testify, M invoked his privilege against self-incrimination, and the state granted M immunity in exchange for his testimony and sought an order to compel him to testify pursuant to statute (§ 54-47a). The trial court granted the state’s request and ordered M to testify, but defense counsel withdrew his request for a probable cause hearing before any testimony was presented. To ensure that M would testify for the state at the defendant’s criminal trial, M was arrested pursuant to a material witness warrant. M ultimately testified against the defendant after being granted immunity. At trial, the defendant sought to establish a claim of self-defense, but the jury rejected that claim and found him guilty of murder under a transferred intent theory. On appeal, the defendant claimed, inter alia, that the state had failed to meet its burden of proving beyond a reasonable doubt that the provocation exception to self-defense defeated his self-defense claim and that the prosecutor had engaged in certain prosecutorial improprieties. Held:
Because the evidence in the record was sufficient for the jury to have found that the defendant did not reasonably believe that deadly physical force was necessary to defend himself, the defendant’s self-defense claim was unavailing, and, therefore, it was not necessary for the state to prove that the provocation exception, or any other exception, to self-defense applied in order to secure the defendant’s murder conviction.
The jury reasonably could have found that any belief the defendant had that deadly force was necessary to defend himself was unreasonable in light of the evidence adduced at trial, including that neither M nor F was armed with a weapon, there was no indication to the defendant that M or F was armed, and
* The listing of justices reflects their seniority status on this court as of the date of oral argument.
State v. Guerrero
neither M nor F ever attempted to use deadly force against the defendant or to inflict great bodily harm on him.
The prosecutor did not engage in prosecutorial impropriety that deprived the defendant of his due process right to a fair trial when, during rebuttal argument, he stated to the jury that M was reluctant to testify against the defendant because of a purported familial connection to the defendant, specifically, that the defendant was the biological father of L, a child whom M considered to be his stepdaughter.
The prosecutor’s remark regarding M’s reluctance to testify did not improperly rely on facts not in evidence, as the jury heard testimony that M was reluctant to testify because of L and her relationship to the defendant.
Moreover, the prosecutor’s remark regarding M’s reluctance to testify did not constitute a personal opinion concerning M’s credibility, as the prosecutor neither vouched for M’s credibility nor implied that he had outside knowledge thereof, and, immediately prior to the challenged remark, the prosecutor informed the jury that it was the arbiter of witness credibility.
Furthermore, the prosecutor did not improperly appeal to the emotions, passions, and prejudices of the jurors when he referred to the familial relationship between M and L, as the prosecutor did not attempt to gain sympathy for M by lingering on his relationship with L or by contending that M must be a great stepfather because he did not want to testify against L’s biological father but, rather, sought to encourage the jurors to consider the testimony M gave regarding his reluctance to testify and to assess his credibility on the basis of that testimony.
The defendant could not prevail on his claim that the prosecutor, through a series of evidentiary maneuvers that prevented defense counsel from asking M about his prior invocation of his privilege against self-incrimination, improperly misled the jury regarding M’s reluctance to testify against the defendant and, therefore, had a duty to correct M’s testimony.
There was no evidence to suggest that M’s testimony regarding his concern for L was false, and, although defense counsel was barred from questioning M about his invocation of the privilege against self-incrimination, counsel was not prohibited from eliciting testimony from M that his prior reluctance to testify was attributable to his fear of exposure to criminal liability in connection with the altercation that resulted in the victim’s death.
In addition, because M, in exchange for his testimony, was afforded immunity that shielded him from prosecution related to the victim’s death, it was unlikely that M’s reluctance to testify against the defendant was due to his concern about future criminal charges rather than because of his connection to the defendant through L.
Argued March 6—officially released September 8, 2026
State v. Guerrero
Procedural History
Substitute information charging the defendant with
the crime of murder, brought to the Superior Court in
the judicial district of New Haven and tried to the jury
before Vitale, J.; verdict and judgment of guilty, from
which the defendant appealed. Affirmed.
Norman A. Pattis, for the appellant (defendant).
Meryl R. Gersz, assistant state’s attorney, with whom,
on the brief, were John Doyle, Jr., state’s attorney, and
Gregory L. Borrelli and Melissa Holmes, senior assistant
state’s attorneys, for the appellee (state).
Opinion
McDONALD, J. The defendant, Leon L. Guerrero,
appeals from the trial court’s judgment of conviction,
rendered after a jury trial, of one count of murder in
violation of General Statutes § 53a-54a (a). He claims that
the state failed to meet its burden of proving beyond a
reasonable doubt that the provocation exception to selfdefense was applicable to the case. The defendant further
claims that the judgment should be reversed because the
prosecutor engaged in prosecutorial impropriety, thereby
depriving the defendant of his due process right to a fair
trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. During the night of April 22, 2023, and into the
early morning hours of April 23, 2023, the defendant
had several arguments over the phone with Susanna
Santiago, who is the mother of the defendant’s eight
year old daughter, Leanna. Following the phone calls,
Santiago asked her boyfriend, Hector Martinez, to pick
up Leanna from the home of the defendant’s girlfriend,
Fernanda Salazar, which he previously had done on several occasions. Martinez’ friend, Rafael Fuentes, drove
Martinez to Salazar’s house in a white BMW. After
Leanna got into the backseat of the BMW, the defendant,
who had been sitting in his green Honda in Salazar’s
State v. Guerrero
driveway, revved the engine of his car and pulled up
to the driver’s side of the BMW. The defendant and
Fuentes began arguing and exchanging insults. After
the defendant moved his Honda to the side of the road,
the two men exited the vehicles and continued arguing in the street, calling each other names and inviting
each other to fight. Martinez exited the BMW and got
between the defendant and Fuentes, intending to stop
them from physically fighting. Undeterred, the defendant and Fuentes continued arguing, with the defendant
telling Fuentes that he “left the strap in the car,” i.e.,
that there was a gun in the defendant’s car.
While the men were arguing, Leanna was screaming
from the BMW for the men to stop. When Martinez
walked away from the argument and toward the BMW to
check on her, the defendant and Fuentes began punching
each other. Martinez again tried to break up the fight
and, with the hope of calming them down, reminded
the two men that Leanna was in the car. After finally
separating the men, Martinez repeatedly told Fuentes
to get back in the BMW. Before doing so, Fuentes said to
the defendant, “[t]he first thing you did was grab a blick;
I came with nothing.” “Blick” is a slang term for a gun.
The defendant responded, “it’s still there,” indicating
that his gun was, indeed, in his car.
Martinez continued to try to calm the situation, but,
because the defendant was convinced that Martinez
had held him down during the fight with Fuentes, the
defendant challenged Martinez to fight. Although Martinez yelled at the defendant because he was upset that
Leanna had to witness the fighting, he did not fight the
defendant. Salazar arrived on the scene and encouraged
Martinez and Fuentes to leave.
With Leanna and Martinez in the BMW with him,
Fuentes started to drive away. The defendant yelled
further insults at Martinez and Fuentes, told them,
“[i]t’s on for both of y’all,” and punched the driver’s
side front window of the BMW, next to where Fuentes
State v. Guerrero
was sitting. Fuentes stopped the car, and Martinez and
Fuentes both got out. The defendant ran toward his own
car, and the others followed. There was a struggle at the
open driver’s door of the defendant’s car, involving the
defendant, Martinez, Fuentes, and Salazar. Leanna had
also exited the BMW and ended up on the ground in the
middle of the struggle.
As the struggle continued, a third car arrived on the
scene; Yanbelyz Rodriguez was the driver, and Santiago
and the victim, Tayna Rodriguez, were the passengers.
Santiago and the victim ran toward the melee and arrived
just as the defendant fired his gun. The bullet passed
through the victim’s left armpit area, neck, and chin,
ultimately lodging in her head and killing her. Following the shooting, the defendant remained on the scene,
where he was arrested.
The state charged the defendant with murder in
violation of § 53a-54a (a).1 At trial, the defendant,
who did not testify, sought to establish a claim of
self-defense. At the conclusion of the trial, the jury
rejected the defendant’s self-defense claim and found
him guilty of murder. The trial court sentenced the
defendant to forty years of incarceration. The defendant
then appealed to the Appellate Court, and the appeal
was transferred to this court. See General Statutes
§ 51-199 (b) (3); Practice Book § 65-4. Additional facts
and procedural history will be set forth as necessary.
I
We first address the defendant’s claim that the state
failed to present sufficient evidence to prove beyond a
reasonable doubt that the defendant forfeited his right
to defend himself under the provocation exception to
self-defense. “The standard of review governing a chal1
The state charged the defendant under a transferred intent theory—
that is, the state alleged that the defendant, acting with the intent to cause the death of another person, caused the death of the victim by means of the discharge of a firearm. See General Statutes § 53a-54a (a).
State v. Guerrero
lenge to the sufficiency of the evidence to defeat a claim
of self-defense . . . is the same [as the] standard used when
examining claims of insufficiency of the evidence. . . .
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 [jury] reasonably could
have concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt . . . . This
court cannot substitute its own judgment for that of the
jury if there is sufficient evidence to support the jury’s
verdict.” (Citation omitted; internal quotation marks
omitted.) State v. Johnson, 351 Conn. 53, 62–63, 328
A.3d 143 (2025).
“In reviewing the sufficiency of the evidence, [w]e do
not ask whether there is a reasonable view of the evidence
that would support a reasonable hypothesis of innocence.
We ask, instead, whether there is a reasonable view of
the evidence that supports the [jury’s] verdict of guilty.”
(Internal quotation marks omitted.) State v. Ramsey,
352 Conn. 210, 232, 336 A.3d 455 (2025). Thus, when
a defendant challenges the sufficiency of the evidence to
defeat a claim of self-defense, “we construe the evidence
and all the reasonable inferences drawn therefrom in the
light most favorable to supporting the jury’s rejection
of the defendant’s defense.” (Internal quotation marks
omitted.) Id.
“In Connecticut, it is well settled that self-defense
is a justification for engaging in otherwise criminal
conduct.” (Internal quotation marks omitted.) State v.
Williams, 352 Conn. 104, 115, 335 A.3d 792 (2025).
Pursuant to General Statutes § 53a-19 (a), a defendant’s
use of deadly physical force is justified on the ground of
self-defense only if (1) the defendant actually believed
that his attacker was using or was about to use deadly
physical force against him, or was inflicting or about to
inflict great bodily harm on him, (2) a reasonable person,
State v. Guerrero
viewing all the circumstances from the defendant’s point
of view, would have shared that belief, (3) the defendant
actually believed that deadly physical force was necessary
to defend himself, and (4) a reasonable person, viewing
all the circumstances from the defendant’s point of view,
also would have shared that belief. See, e.g., State v.
Johnson, supra, 351 Conn. 61; see also, e.g., State v.
Hughes, 341 Conn. 387, 398–99, 267 A.3d 81 (2021).
Section 53a-19 also sets out exceptions to self-defense
that include, as relevant to this case, a provocation exception. Under § 53a-19 (c), “a person is not justified in using
physical force when (1) with intent to cause physical
injury or death to another person, he provokes the use
of physical force by such other person . . . .”
Once a criminal defendant raises a justification defense,
the state bears the burden of disproving that defense. “To
sustain its burden, the state must disprove beyond a reasonable doubt any of the components of these defenses
or establish beyond a reasonable doubt that any of the
statutory exceptions . . . applied.” (Internal quotation
marks omitted.) State v. Johnson, supra, 351 Conn. 62.
“In assessing the sufficiency of the evidence, we must
focus on the theory of self-defense . . . that was presented
at trial.” Id.
On appeal, the defendant claims that the evidence
presented at trial was insufficient to prove beyond a
reasonable doubt that the provocation exception to selfdefense applied. Specifically, the defendant contends that
there is no “universe” in which “punching a car window
and uttering hateful speech” amount to conduct that
constitutes provocation under § 53a-19 (c) (1). The state
argues in response that sufficient evidence existed for
the jury to conclude beyond a reasonable doubt that the
defendant did not act in self-defense and that we therefore need not reach whether the provocation exception to
self-defense applied. We agree with the state that there
was sufficient evidence to disprove the defendant’s selfState v. Guerrero
defense claim. “As a result, we need not consider whether
the state also proved beyond a reasonable doubt that a
statutory exception to self-defense applied.” State v.
Ramsey, supra, 352 Conn. 230.
We begin our analysis by construing the record in
the light most favorable to sustaining the verdict. See,
e.g., State v. Johnson, supra, 351 Conn. 63. The jury
had before it evidence that Martinez and Fuentes knew
that the defendant had a gun in his car. Martinez testified that he knew that the defendant was armed because
the defendant had said so: “He definitely had a gun. He
told us he had a gun.” The prosecutor introduced video
evidence that is consistent with Martinez’ testimony. In
one of the videos, which was taken by a witness to the
altercation, the defendant can be heard saying to Fuentes
that he “left the strap in the car,” and, later, Fuentes can
be heard saying to the defendant, “[t]he first thing you
did was grab a blick . . . .” As previously noted, “strap”
and “blick” are both slang terms for a gun.
The jury also had before it evidence that neither Martinez nor Fuentes was armed. During the altercation,
Fuentes said to the defendant, in reference to the “blick,”
that he “came with nothing.” This is consistent with the
video evidence, which does not show a second gun during
or after the altercation. Additionally, several members of
law enforcement testified that the defendant’s gun was
the only gun that was part of the altercation. Detective
David Parker testified that, other than the defendant’s
gun, no other firearms were located on the scene. Officer
Ismail Abdussabur testified that the defendant did not
say anything to him that led him to believe that there was
another firearm on the scene. Officer Martin Feliciano
also testified that the defendant did not say anything
to indicate that there was potentially another firearm
on the scene. Moreover, there was evidence before the
jury that the defendant told police officers that he did
not see another gun.
State v. Guerrero
The prosecutor presented evidence that Martinez was
not a participant in the fight but, rather, was attempting to stop the defendant and Fuentes from fighting.
Specifically, Martinez wanted to stop the fight because
Leanna was present. The prosecutor also introduced video
evidence showing that Martinez was trying to keep the
defendant and Fuentes calm. Further, the prosecutor
presented video evidence showing that, immediately
before the shooting, Martinez was grabbing and pulling
at the defendant, not attempting to inflict harm on him.
That video evidence, construed in the light most favorable to sustaining the verdict, also shows that Fuentes
was attempting to stop the defendant from getting his
gun right before he fired it.
The second step of our analysis requires us to “determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably
could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . .”
(Internal quotation marks omitted.) State v. Johnson,
supra, 351 Conn. 63. If the jury credited Martinez’ testimony, it reasonably could have inferred that, because
Martinez and Fuentes knew that the defendant had a gun
in his car, they were trying to stop him from grabbing his
gun and were not attempting to use deadly force against
him or to inflict great bodily harm on him. The jury reasonably could have drawn the same inference from the
video evidence of the struggle that occurred immediately
before the shooting. If the jury found that Martinez and
Fuentes were merely trying to stop the defendant from
getting his gun, it reasonably could have concluded that
any belief that the defendant had that deadly force was
necessary to defend himself was unreasonable.
The jury also reasonably could have found that the
defendant’s belief was unreasonable if it credited the testimony of Martinez, along with that of Detective Parker
and Officers Abdussabur and Feliciano, indicating that
State v. Guerrero
neither Martinez nor Fuentes was armed. The jury could
have drawn the same inference from the video evidence,
which does not show Martinez or Fuentes ever holding a
gun. The jury reasonably could have concluded that, in
the absence of the threat of being shot, any belief that
the defendant had that he needed to defend himself with
deadly force was unreasonable.
In its totality, the evidence provided ample support
for the jury to have concluded that the defendant did
not reasonably believe that the degree of force he used
was necessary to defend himself. Thus, the defendant’s
use of deadly physical force was not justified. See, e.g.,
State v. O’Bryan, 318 Conn. 621, 632–33, 123 A.3d 398
(2015) (“if a jury determines that the defendant’s honest
belief that he had needed to use deadly force, instead of
some lesser degree of force, was not a reasonable belief,
the defendant is not entitled to the protection of § 53a19” (internal quotation marks omitted)). Because there
was sufficient evidence to disprove beyond a reasonable
doubt the defendant’s self-defense claim, there was no
need for the state to demonstrate that a statutory exception applied. Accordingly, the defendant’s claim fails.
II
We next consider whether the prosecutor deprived the
defendant of his due process right to a fair trial by engaging in prosecutorial impropriety. The following additional facts and procedural history are relevant to our
resolution of this claim. The prosecutor called Martinez as
a witness at the defendant’s probable cause hearing. The
presiding judge advised Martinez that he “may be exposed
[to] criminal liability” based on any statements that he
makes regarding the altercation that resulted in the death
of the victim, and Martinez invoked his fifth amendment
privilege against self-incrimination. After a brief recess,
the prosecution granted Martinez immunity in exchange
for his testimony and sought an order to compel him to
State v. Guerrero
testify pursuant to General Statutes § 54-47a. The trial
court granted the prosecution’s request and ordered Martinez to testify. At that point, defense counsel withdrew
his request for a probable cause hearing. The hearing
therefore was terminated, and the case proceeded to trial.
The state had unsuccessfully attempted to serve a
subpoena on Martinez to testify at the defendant’s jury
trial. The trial court then issued, pursuant to General
Statutes § 54-82j, a material witness warrant for Martinez’ arrest. Martinez was subsequently arrested outside
of his home and brought to the courthouse to testify.
Pursuant to § 54-47a, the state then filed with the trial
court an application to grant Martinez immunity in
exchange for his testimony about the incident. The court
granted the application.
Relevant to the issues in this appeal, the beginning of
the prosecutor’s direct examination of Martinez focused
on the material witness warrant and immunity. Specifically, the prosecutor asked, “[y]ou don’t want to be here,
correct?” Martinez responded, “[n]o.” He then testified about his past interactions with the prosecutor’s
office, including that he was granted immunity for his
testimony against the defendant at the 2023 probable
cause hearing.
On cross-examination, defense counsel elicited further testimony with respect to the trial court’s finding
that the material witness warrant and order requiring
Martinez to testify were necessary because there was no
other means of obtaining sufficient information from
Martinez.
On redirect examination, the prosecutor elicited the
following testimony about Martinez’ relationships in
the context of his reluctance to testify:
“Q. . . . Martinez, we were talking about you not wanting to testify. Your daughter, again, is who? Your stepdaughter. My apologies.
State v. Guerrero
“A. Leanna.
“Q. And who is she in relation to the defendant?
“A. Her dad.
“Q. Biological?
“A. Yes.
“Q. And who are you currently in a relationship with?
“A. [Santiago].
“Q. And what is her relationship to the defendant?
“A. Baby mom.
“Q. Of?
“A. Of Leanna.
“Q. Okay . . . and you’re still currently living with
[Santiago]?
“A. Yes.
“Q. And do you share time with Leanna?
“A. Sometimes, yes.
“Q. Okay. So, being here would make you testify
against your stepdaughter’s father?
“A. Yes.”
On recross-examination, defense counsel followed up
on Martinez’ reluctance to testify:
“Q. So, you didn’t want to testify [at trial] because
you didn’t want to testify against your stepdaughter’s
father, correct?
“A. Correct.”
When defense counsel attempted to question Martinez about the court orders requiring him to testify, the
prosecutor rose to his feet, and the trial court called a
recess, during which the jury and Martinez were excused.
The prosecutor explained that, “[d]epending on what the
State v. Guerrero
next question was, and based on our colloquy at sidebar,
if it hinges on any . . . indication to the jury about . . .
Martinez’ invocation of the fifth amendment, I think
that would be improper for the jury to hear.” The trial
court stated that it “assumed that was coming . . . because
[defense counsel] had the [order compelling Martinez to
testify] marked for [identification as an exhibit]” and
that document “twice [references] the . . . fifth amendment . . . .” Defense counsel responded that “[t]he next
question would have been, ‘does that document say anything about your concerns . . . about your stepdaughter
and her father . . . ?’ ” Counsel also acknowledged that
he “heard” the court and “respect[ed] the orders of the
court . . . .” The trial court indicated that defense counsel
could question Martinez as to whether the court orders
referenced Martinez’ concerns about his stepdaughter,
Leanna, or other members of his family.
After the recess, the jury and Martinez returned, and
defense counsel continued with his recross-examination of Martinez. Counsel asked Martinez: “I believe, in
response to some questions from the [prosecutor], you
testified that you were reluctant to testify in this case
because you did not want to offer testimony involving
the father of your stepdaughter, correct?” Martinez
answered, “[y]es.” Defense counsel then showed Martinez
the defendant’s exhibit B, which was the order requiring
Martinez to testify at the defendant’s probable cause
hearing. After giving Martinez time to read the document, defense counsel asked about it:
“Q. Is that the order . . . under authority of which you
testified in the summer of 2023?
“A. Correct.
“Q. Fair to say that . . . nowhere in there is anything
mentioned about your reluctance to testify involving
the father [of] your stepdaughter, correct?
State v. Guerrero
“A. Correct.”
Defense counsel then presented Martinez with the
defendant’s exhibit A, the trial court’s order requiring
him to testify at the defendant’s trial, and gave him time
to read it. The following exchange occurred between
defense counsel and Martinez:
“Q. . . . [I]s it fair to say that nowhere in that document . . . is mentioned your reluctance to testify in these
proceedings out of concern for the father of your stepdaughter or your stepdaughter, correct?
“A. Correct.”
Defense counsel also asked Martinez whether the two
court orders contained “certain promises . . . that nothing [Martinez] say[s] [at trial] can be used to prosecute
[him] for any crime,” and Martinez answered, “[c]orrect.”
During closing argument, defense counsel referenced
Martinez’ immunity deal: “Then there’s [Martinez], the
immunity agreement. The state said it can’t obtain sufficient information as to whether a crime was committed
without his testimony. The identity of the person or
persons who may have committed a crime requires [Martinez] to testify. Are you a good judge of credibility?”
During his rebuttal argument, the prosecutor again
referenced Martinez’ reluctance to testify. Specifically,
the prosecutor said: “The judge will tell you, ‘you alone
are the ultimate judge of [the credibility] of witnesses.
You alone determine who to believe.’ What I now want
to address with you is who you should believe and,
more importantly, why you should believe. Ask yourselves: what is . . . Martinez’ motivation to lie? Prior
to this incident, he had no real relationship with the
defendant. [The defendant] admitted they never had a
problem in the past. [Martinez] didn’t want to testify
because of the nature of his family’s relationship to the
defendant. He’s testifying against his step[daughter’s]
[father], the father who shares a child with [Martinez’]
State v. Guerrero
current girlfriend. . . . Most importantly, [Martinez]
had to be arrested and brought into court before you
in handcuffs to testify. He told you, the first thing
out of his mouth was, ‘I don’t want to be here.’ ”
We begin with the applicable standard of review and
controlling legal principles governing a claim of prosecutorial impropriety. “[E]ven in the absence of an
objection,” a claim of prosecutorial impropriety “has
constitutional implications and requires a due process
analysis under State v. Williams, 204 Conn. 523, 535–40,
529 A.2d 653 (1987).” (Internal quotation marks omitted.) State v. Sullivan, 351 Conn. 798, 809, 334 A.3d
446 (2025). In analyzing such a claim, we undertake a
two step process: “First, we must determine whether any
impropriety in fact occurred; second, we must examine
whether that impropriety . . . deprived the defendant of
his due process right to a fair trial.” (Internal quotation
marks omitted.) Id., 810. “It is the defendant’s burden
to show that the prosecutor’s conduct was improper
and that it constituted a denial of due process.” State
v. Elmer G., 333 Conn. 176, 194, 214 A.3d 852 (2019).
“It is well established that prosecutorial impropriety
can occur during final or rebuttal argument.” State v.
Ortiz, 343 Conn. 566, 580, 275 A.3d 578 (2022). However, “[w]hen making closing arguments to the jury,
[counsel] must be allowed a generous latitude in argument . . . . The exact 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.” (Citation omitted; internal quotation marks omitted.) State v. Sullivan, supra, 351 Conn.
810. Nevertheless, as this court has emphasized, “the
prosecutor has a heightened duty to avoid argument that
strays from the evidence or diverts the jury’s attention
State v. Guerrero
from the facts of the case.” (Internal quotation marks
omitted.) Id., 811.
The defendant contends that, in stating during rebuttal argument that Martinez did not want to testify during
trial because of the nature of his family’s relationship
to the defendant, the prosecutor mischaracterized Martinez’ reluctance to testify and, therefore, committed
prosecutorial impropriety. Specifically, the defendant
contends that the prosecutor violated his right to a fair
trial because the challenged argument improperly (1)
referred to facts not in evidence, (2) expressed the prosecutor’s personal opinion as to Martinez’ credibility, and
(3) appealed to the emotions, passions, and prejudices of
the jurors. He also claims that the prosecutor purposefully misled the jury by mischaracterizing the evidence to
conceal the real reason for Martinez’ reluctance to testify
against the defendant, which the defendant contends was
Martinez’ fear of criminal prosecution rather than his
professed concern about testifying against the father of
his stepdaughter, Leanna. The defendant argues that the
prosecutor obscured Martinez’ real motivations by eliciting testimony from Martinez regarding his family related
concerns, after the trial court had granted the state’s
motion to preclude evidence regarding Martinez’ prior
invocation of his privilege against self-incrimination at
the defendant’s probable cause hearing. We will address
each of these arguments in turn.
It is well established that prosecutors, in fulfilling
their duties, must confine themselves to the evidence
in the record. See, e.g., State v. Singh, 259 Conn. 693,
717, 793 A.2d 226 (2002). Thus, during closing and
rebuttal argument, “a prosecutor may not comment
on evidence that is not a part of the record and may
not comment unfairly on the evidence in the record.”
State v. Fauci, 282 Conn. 23, 49, 917 A.2d 978 (2007).
During rebuttal argument, the prosecutor stated that
Martinez did not want to testify against the defendant
“because of the nature of his family’s relationship to
the defendant”; that is, Martinez did not want to testify
State v. Guerrero
against the biological father of the child whom he considered to be his stepdaughter. The defendant argues
that Martinez “never testified that his reluctance to
come to court to testify had anything to do with his
relationship with either [Leanna] or [Santiago]” and that
the prosecutor “made that up out of whole cloth . . . .”
The state responds that the prosecutor commented on
facts that were in evidence and properly before the jury.
We agree with the state.
Martinez testified on redirect examination that he was
in a romantic relationship with Santiago, who previously
was in a romantic relationship with the defendant, and
that Santiago and the defendant have a child, Leanna,
whom Martinez considers to be his stepdaughter. The
connection between Martinez’ reluctance to testify and
his concerns for Leanna was explicitly raised during
recross-examination, when defense counsel twice asked
Martinez whether he was reluctant to testify because
of Leanna. Martinez answered in the affirmative both
times. Moreover, the record shows that defense counsel
attempted to impeach Martinez’ testimony as to his reluctance to testify against the defendant. Counsel presented
Martinez with the orders requiring him to testify at the
defendant’s probable cause hearing and trial, and asked
him whether either document mentioned his reluctance to
testify out of concern for his stepdaughter or the father
of his stepdaughter. Martinez answered that neither
document did. In other words, the jury properly had
before it testimony that Martinez was reluctant to testify
because of his family’s relationship to the defendant and
further testimony that called the reason for his reluctance into question. We therefore conclude that the prosecutor did not improperly refer to facts not in evidence.
We next turn to whether the same remark by the prosecutor improperly expressed his personal opinion as
to Martinez’ credibility and, therefore, impermissibly
vouched for him. “We consistently have held that it is
improper for a prosecuting attorney to express his or her
own opinion, directly or indirectly, as to the credibility
State v. Guerrero
of witnesses.” State v. Fauci, supra, 282 Conn. 35. “Such
expressions of personal opinion are a form of unsworn
and unchecked testimony, and are particularly difficult
for the jury to ignore because of the prosecutor’s special
position. . . . Moreover, because the jury is aware that
the prosecutor has prepared and presented the case and
consequently, may have access to matters not in evidence
. . . it is likely to infer that such matters precipitated the
personal opinions.” (Citations omitted; internal quotation marks omitted.) State v. Thompson, 266 Conn. 440,
462, 832 A.2d 626 (2003). However, courts must give
jurors “the credit of being able to differentiate between
argument on the evidence and attempts to persuade them
to draw inferences in the state’s favor, on one hand, and
improper unsworn testimony, with the suggestion of
secret knowledge, on the other hand.” (Internal quotation marks omitted.) Id., 465.
The defendant claims that the prosecutor’s remark
“was an indirect form of expressing a personal opinion
about the credibility of [Martinez] in the form of unsworn
and unchecked testimony.” Contrary to the defendant’s
characterization of the prosecutor’s remark, the prosecutor did not offer his personal opinion. The prosecutor
neither guaranteed Martinez’ credibility nor implied
that he had outside knowledge of Martinez’ credibility.
He merely highlighted for the jury the evidence that had
been elicited during Martinez’ testimony. Moreover,
immediately before the challenged remark, the prosecutor told the jury that it was the arbiter of witness
credibility. We therefore conclude that the prosecutor’s
remark did not improperly express a personal opinion or
vouch for Martinez.
We next consider whether the prosecutor improperly
appealed to the emotions, passions, and prejudices of
the jurors. “It is well established that . . . [s]uch appeals
should be avoided because they have the effect of diverting the [jurors’] attention from their duty to decide the
State v. Guerrero
case on the evidence. . . . When the prosecutor appeals
to emotions, he invites the jury to decide the case, not
according to a rational appraisal of the evidence, but on
the basis of powerful and irrelevant factors [that] are
likely to skew that appraisal.” (Internal quotation marks
omitted.) State v. Sullivan, supra, 351 Conn. 812.
The defendant claims that the prosecutor’s reference
to the relationship between Martinez and Leanna is “a
blatant appeal to the sympathy of the jury of the sort
[that] this court has prohibited elsewhere.” He argues
that there is no difference between the prosecutor’s
remark here and the improper remark in State v. Warholic, 278 Conn. 354, 897 A.2d 569 (2006), referring to
a victim as a “cute little kid . . . .” (Internal quotation
marks omitted.) Id., 375–76. We are not persuaded.
In Warholic, this court concluded that the victim’s
appearance “was irrelevant because it had no bearing on
witness credibility or any factual issue in the case. Further, the sole purpose of this remark could only have been
to encourage the jury to sympathize with [the victim]
and to decide the case on the basis of passion and emotion.” Id., 377. That is not what happened here. Rather
than appealing to the jurors’ emotions, passions, and
prejudices, the prosecutor’s remarks are more reasonably construed as encouraging the jurors to consider
the testimony Martinez gave regarding his reluctance to
testify and to determine for themselves his credibility.
The record does not show that the prosecutor attempted
to gain sympathy for Martinez by lingering on the relationship between him and Leanna or contending that
Martinez must be a great stepfather because he did not
want to testify against Leanna’s father, the defendant.
The prosecutor merely cited evidence that was properly
before the jury and asked the jury to consider the evidence
as part of its credibility assessment. Moreover, because
defense counsel referred to Martinez’ immunity deal during closing argument in order to call Martinez’ credibility
State v. Guerrero
into question, it was not improper for the prosecutor to
cite relevant evidence from which the jury could find that
Martinez was a credible witness. We cannot conclude
that the remark improperly appealed to the emotions
of the jurors. Accordingly, the defendant’s claim fails.
Finally, we consider the defendant’s claim that the prosecutor, through a series of evidentiary maneuvers that
prevented defense counsel from asking Martinez about
his prior invocation of his privilege against self-incrimination, improperly misled the jury regarding Martinez’
reluctance to testify against the defendant. The defendant
contends that the prosecutor’s “misrepresentation of . . .
Martinez’ motives for not testifying was, on the record
as a whole, dishonest . . . .” The state responds that “the
record is mostly inadequate to review” the defendant’s
claim and that, even if this court reviews the claim, it
is meritless because the prosecutor “presented the jury
with various factors affecting [Martinez’] reluctance
to testify, including being offered immunity at [the
defendant’s probable cause] hearing and the present trial,
and his arrest pursuant to a material witness warrant.”
Although we agree with the defendant that the record
is adequate to review his claim,2 we conclude that the
claim fails.
A prosecutor has an affirmative duty to correct both
false and substantially misleading testimony. See, e.g.,
State v. Johnson, 345 Conn. 174, 205, 283 A.3d 477
(2022); see also Giglio v. United States, 405 U.S. 150,
153–54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Napue
2
The record establishes that the prosecutor requested, and was
granted, a limitation on defense counsel’s cross-examination of Martinez regarding his prior invocation of his privilege against selfincrimination. It indicates that there was a “colloquy at sidebar” at the defendant’s trial, during which the subject of Martinez’ prior
invocation of the fifth amendment was discussed. Counsel and the
trial court acknowledged on the record that, in light of their discussion at sidebar, any reference before the jury to Martinez’ prior invocation would be improper. Moreover, the defendant filed a motion
for articulation, requesting that the trial court clarify its “decision to prohibit the defense from impeaching [Martinez] at trial . . . on the basis of the fact that [he] pleaded the fifth amendment right against self-incrimination at the hearing [on] probable cause in the
State v. Guerrero
v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed.
2d 1217 (1959). Testimony is “false” if “the prosecutor
knows that a state witness has committed perjury,”
whereas testimony is “substantially misleading” if,
“although made in good faith, [it] is untrue in a manner that should be obvious to” the prosecutor. State v.
Johnson, supra, 345 Conn. 205. Various courts have
recognized that “ half-truths and vague statements that
could be true in a limited, literal sense but give a false
impression to the jury” are substantially misleading.
(Internal quotation marks omitted.) United States v.
Freeman, 650 F.3d 673, 680 (7th Cir. 2011); see also,
e.g., Burr v. Jackson, 19 F.4th 395, 410 (4th Cir. 2021)
(“[f]alse testimony includes both perjury and evidence
that, though not itself factually inaccurate . . . creates
a false impression of facts which are known not to be
true” (internal quotation marks omitted)), cert. denied,
___ U.S. ___, 143 S. Ct. 151, 214 L. Ed. 2d 48 (2022).
At trial, Martinez was asked directly whether he
“didn’t want to testify . . . because [he] didn’t want
to testify against [his] stepdaughter’s father,” and he
answered in the affirmative. There is no evidence in the
record indicating that Martinez’ testimony regarding his
concern for his stepdaughter, Leanna, was false, much
less that it rose to the level of perjury because it was
intentionally false; nor is there anything in the record
suggesting that the prosecutor knew that the testimony
was false. Thus, the only arguable issue raised by the
defendant is whether Martinez’ testimony regarding the
reason for his reluctance to testify against the defendant
was substantially misleading, that is, whether it was so
incomplete as to render it untrue in a manner that should
have been obvious to the prosecutor.
instant matter.” Although the trial court denied the motion, we observe that the state, with appropriate candor, acknowledged in its response to the motion for articulation that the prosecutor sought, and received, an order limiting the scope of defense counsel’s cross-examination of Martinez regarding Martinez’ “prior invocation of his fifth amendment right against self-incrimination.”
State v. Guerrero
We conclude that the defendant has failed to establish
that Martinez’ testimony was substantially misleading. The defendant did not allege that defense counsel
objected, on or off the record, to the trial court’s order
precluding cross-examination of Martinez about his prior
invocation of his privilege against self-incrimination,
and no such claim is made on appeal. Moreover, although
defense counsel was barred from questioning Martinez on
that specific topic, there is no evidence indicating that the
jury was precluded from hearing testimony regarding the
reason that Martinez had invoked the fifth amendment,
which, the defendant contends, was Martinez’ concern
that his testimony regarding his participation in the
altercation that resulted in the death of the victim might
lead to the imposition of criminal charges against him.
Defense counsel questioned Martinez about the orders
compelling him to testify, pointing out that “nowhere”
in those orders is anything “mentioned” regarding Martinez’ “reluctance to testify” due to his concern for the
“father” of his “stepdaughter . . . .” Instead, those orders
“ma[d]e certain promises” to Martinez, one of them being
that “nothing [Martinez] say[s] [at trial] can be used to
prosecute [him] for any crime.” Although there is no
doubt that defense counsel was precluded from crossexamining Martinez directly about his prior invocation
of his fifth amendment privilege, the record does not support the claim that counsel was prohibited from eliciting
from Martinez that his prior reluctance to testify was
attributable to his fear of exposure to criminal liability.
In other words, we are not persuaded that the jury was
presented with a misleading half-truth about the actual
motivation behind Martinez’ reluctance to testify against
the defendant, and, even if that were the case, we could
not conclude on this record that the misimpression was
the result of prosecutorial impropriety. The grant of
immunity to Martinez in exchange for his compelled
testimony further undermines the defendant’s assertion that the true reason that Martinez was reluctant to
testify at trial was his desire to avoid criminal liability
for his conduct in connection with the victim’s murder.
Martinez was afforded immunity pursuant to § 54-47a,
State v. Guerrero
which “provide[s] both transactional and derivative use
immunity to witnesses compelled under the statute to
testify.” (Internal quotation marks omitted.) Furs v.
Superior Court, 298 Conn. 404, 411, 3 A.3d 912 (2010).
Unlike derivative use immunity, which protects a state
witness only “from the use of the compelled testimony
(or any information derived from that testimony) in a
future prosecution against the witness”; (internal quotation marks omitted) id., 406; transactional immunity
“protects a witness from prosecution for the offense to
which the compelled testimony relates.” (Internal quotation marks omitted.) Id., 407. Transactional immunity
therefore “improve[s] the legal position of the holder of
the [fifth amendment] privilege”; (internal quotation
marks omitted) id.; by protecting the holder from “all
later prosecutions related to matters about which the
[holder] testifie[d], that is, any offenses arising out of
the transaction that was the subject of the compelled
testimony.” (Internal quotation marks omitted.) 1 R.
Mosteller et al., McCormick on Evidence (9th Ed. 2025)
§ 143, pp. 952–53. Because Martinez could not be prosecuted for any offenses arising out of the altercation in
which the victim was killed, it is unlikely that Martinez’
reluctance to testify at trial was due to his concern about
future criminal charges.
Considering the record as a whole, we conclude that
Martinez’ testimony did not give the jury a false or
substantially misleading impression about why he was
reluctant to testify. It necessarily follows that the prosecutor did not commit an impropriety that deprived the
defendant of his due process right to a fair trial.
The judgment is affirmed.
In this opinion the other justices concurred.