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                STATE v. MARTINEZ—DISSENT

  McDONALD, J., with whom PALMER and ROB-
INSON, Js., join, dissenting. By characterizing the prose-
cutor’s misconduct in this case as ‘‘not particularly
severe,’’ the majority minimizes the significance of the
prosecutor’s knowing misrepresentation of the truth to
the jury about a material fact in order to support the
state’s theory of the case. In doing so, the prosecutor
perverted the effect of the trial court’s suppression of
evidence unlawfully obtained, and contorted the
absence of that evidence into the ‘‘essence’’ of the
state’s case. It is never proper for a prosecutor—a minis-
ter of justice—to advance a theory based on facts that
the prosecutor knows is false. By purposefully mis-
leading the jury in order to fill a gap in the state’s case
caused by the suppression of evidence, the prosecutor
engaged in misconduct that was so substantial and
severe that it denied the defendant, Anthony Martinez,
his due process right to a fair trial. The majority’s con-
clusion to the contrary compels me to dissent.
   As the majority itself acknowledges, the trial court
made it clear that the parties would only be allowed to
make references to the lack of money found on the
defendant ‘‘if clothed in the qualifying language’’ that
there was no evidence of money found. The prosecu-
tor’s argument to the jury that there was, in fact, no
money found on the defendant, therefore, manifestly
violated the court’s unambiguous instruction. More-
over, the prosecutor then compounded this impropriety
by implying to the jury that all of the drugs and the
money were in the possession of the defendant’s alleged
coconspirator, Mari Vargas, in order to support the
state’s theory that the defendant, acting as the ring-
leader, sought to exculpate himself by sequestering all
of the contraband—both the drugs and the money—
with Vargas. The prosecutor intoned that such a state
of affairs only ‘‘makes sense’’ and readily acknowledged
that this arrangement formed the ‘‘essence [of] the
state’s case.’’
   The majority characterizes the prosecutor’s argument
regarding this arrangement as one that simply asked
the jurors to draw on their own experience, intuition,
and common sense to determine whether the defendant
possessed narcotics with the intent to sell, even though
there was no evidence that the defendant had actual
possession of any narcotics or money. Perhaps in
another case a jury could reasonably draw the inference
that a person engaged in the sale of narcotics would
want to ensure that all evidence of that crime would
have been in the possession of an underling. The insur-
mountable problem presented by the prosecutor’s argu-
ment in this case, however, is that it was belied by the
true state of reality as known to the prosecutor. The
defendant did not make sure that all evidence related
to the crime was in Vargas’ actual possession—indeed,
he had more money in his possession than she did.1
   As a minister of justice with unique duties and respon-
sibilities to the public and the judicial system, a prosecu-
tor ‘‘has a heightened duty to avoid argument that strays
from the evidence or diverts the jury’s attention from
the facts of the case. [The prosecutor] is not only an
officer of the court, like every attorney, but is also a
high public officer, representing the people of the
[s]tate, who seek impartial justice for the guilty as much
as for the innocent.’’ (Internal quotation marks omit-
ted.) State v. Medrano, 308 Conn. 604, 612, 65 A.3d 503
(2013). Misrepresenting the truth to a jury is improper
conduct for any attorney, but it is particularly egregious
when done by a prosecutor.2 A prosecutor simply can-
not advance a theory of the state’s case that is inconsis-
tent with the truth. Cf. Massameno v. Statewide
Grievance Committee, 234 Conn. 539, 557, 663 A.2d 317
(1995) (prosecutor has duty ‘‘to ensure that all evidence
tending to aid in the ascertaining of the truth be laid
before the court, whether it be consistent with the con-
tention of the prosecution that the accused is guilty’’).
  Almost as significant as the misrepresentation of the
actual facts, the prosecutor’s actions deprived the
defendant of the full effect of the remedy that he had
obtained for unlawful police conduct. The $60 found
on the defendant at the time of his arrest was sup-
pressed by the trial court as the fruits of an illegal
search. In light of that suppression, the state was tasked
with the burden of proving its case beyond a reasonable
doubt in the absence of that evidence. In arguing to the
jury that it ‘‘makes sense’’ that the defendant would
place the drugs and money in Vargas’ possession
because the defendant was the one ‘‘calling the shots,’’
the prosecutor subverted the import of the court’s sup-
pression order by asking the jury to draw an inference
based on a fact that he knew was false.
    It is plain that, when evidence is suppressed, a defen-
dant may not use the absence of that evidence offen-
sively as a ‘‘sword,’’ but rather may only use the
suppression of evidence as a ‘‘shield.’’ See, e.g., Harris
v. New York, 401 U.S. 222, 226, 91 S. Ct. 643, 28 L. Ed.
2d 1 (1971) (although defendant’s statements given in
violation of Miranda v. Arizona, 384 U.S. 436, 478–79,
86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966], are inadmissible
in prosecution’s case-in-chief, ‘‘[t]he shield provided by
Miranda cannot be perverted into a license to use per-
jury by way of a defense, free from the risk of confronta-
tion with prior inconsistent utterances’’); State v.
Williams, 171 W. Va. 556, 560, 301 S.E.2d 187 (1983)
(‘‘[t]he exclusionary rule is a shield, and not a sword,
to criminal defendants’’). If a defendant—the intended
beneficiary of the exclusionary rule—is unable to use
the suppression of evidence offensively, the state
should not be permitted to brandish its sword in a way
that undermines the court’s suppression order.
   Although ‘‘[i]t is certainly within the bounds of fair
advocacy for a prosecutor, like any lawyer, to ask the
jury to draw inferences from the evidence that the pros-
ecutor believes in good faith might be true . . . it is
decidedly improper for the government to propound
inferences that it knows to be false . . . .’’ United
States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002).3
Because the prosecutor knew that the defendant had
money on his person at the time of his arrest, it was
improper for the prosecutor to ask the jury to draw an
inference from the misrepresentation that the defen-
dant actually had no money on him. If ‘‘arriving at the
truth is a fundamental goal of our legal system’’; United
States v. Havens, 446 U.S. 620, 626, 100 S. Ct. 1912, 64
L. Ed. 2d 559 (1980); allowing a prosecutor to misrepre-
sent to the jury the true facts of a case is ‘‘neither
consistent with the proper functioning and continued
integrity of the judicial system nor with the policies of
the exclusionary rules.’’ People v. Payne, 98 Ill. 2d 45,
51–52, 456 N.E.2d 44 (1983), cert. denied, 465 U.S. 1036,
104 S. Ct. 1310, 79 L. Ed. 2d 708 (1984).
   When considering that not only did the prosecutor
disobey the court’s clear and explicit order regarding
proper argument with respect to this issue, in doing so
he also intentionally misled the jury to draw a false
inference, it becomes apparent that the improprieties in
this case are significantly more severe than the majority
acknowledges. Upon consideration of the factors set
forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d
653 (1987), I am compelled to conclude that there was
‘‘a reasonable likelihood that the jury’s verdict would
have been different absent the sum total of the impropri-
eties.’’ (Internal quotation marks omitted.) State v.
Angel T., 292 Conn. 262, 287, 973 A.2d 1207 (2009);
see also id. (court gives consideration to six Williams
factors: ‘‘[1] the extent to which the [impropriety] was
invited by defense conduct or argument; [2] the severity
of the [impropriety]; [3] the frequency of the [impropri-
ety]; [4] the centrality of the [impropriety] to the critical
issues in the case; [5] the strength of the curative mea-
sures adopted; and [6] the strength of the state’s case’’
[internal quotation marks omitted]).
   In my view, only the third Williams factor weighs in
the state’s favor. The improprieties were infrequent, as
the prosecutor twice stated in closing argument that
the defendant had no money in his possession at the
time of his arrest. The fifth Williams factor is neutral;
defense counsel did object to the prosecutor’s argu-
ment, but declined the court’s request to provide a lim-
iting instruction, out of an entirely reasonable concern
that bringing the issue to the jury’s attention would only
exacerbate the harm.
  The remaining factors, however, all weigh in the
defendant’s favor. The prosecutor’s statements were
uninvited by the defense.4 Moreover, the severity of the
prosecutor’s impropriety cannot be understated. I agree
with the majority that, in the abstract, the distinction
between an argument that there was no money found
on the defendant and one that there was no evidence
of money found on the defendant may seem relatively
inconsequential. The problem created by the prosecu-
tor’s statements in the present case, however, was not
merely a matter of semantics. As I have previously
explained, the prosecutor misled the jury to believe
that the reason there was no money in the defendant’s
possession was because the defendant was the one
‘‘calling the shots,’’ and the prosecutor perverted the
effect of the suppression of evidence unlawfully
obtained to support this theory. In doing so, the state
simultaneously undermined both the constitutional
objectives that animate the exclusionary rule and the
truth seeking function of a trial. That is quite an igno-
minious feat.
   It cannot reasonably be disputed that whether the
defendant exercised dominion and control over the
drugs or money found in Vargas’ possession was the
central issue in the case. Given the centrality of this
issue, I disagree with the majority that the state other-
wise presented a strong case. As the Appellate Court
properly reasoned, the state’s case was not particularly
strong when ‘‘[t]he evidence connecting the defendant
to the drugs found on Vargas’ person consisted largely
of circumstantial evidence based upon [the officer’s]
observations of the defendant’s movements on the park
bench from a sufficient distance that he used binoculars
to make his observations.’’ State v. Martinez, 143 Conn.
App. 541, 580, 69 A.3d 975 (2013). Indeed, because the
state could present no evidence of the defendant’s
actual possession of narcotics or money connected with
the sale of narcotics, absent the improper argument
that the prosecutor presented, the state would have had
to rely solely on these distantly observed, ambiguous
interactions between the defendant and Vargas to sup-
port its theory of constructive possession. Although
there was some evidence that may have led the jury to
draw the inference that the defendant exerted construc-
tive possession of the narcotics and money found in
Vargas’ possession, because that was the crucial deter-
mination to be made in the case, the prosecutor’s state-
ments certainly undermines confidence in the verdict.
Thus, in my mind, ‘‘the state’s case was not sufficiently
strong so as to not be overshadowed by the impropri-
ety.’’ State v. Angel T., supra, 292 Conn. 293.
   Accordingly, when properly viewing the impropriety
as one relating to the prosecutor’s deliberate attempt
to mislead the jury, I would conclude that there is a
‘‘reasonable likelihood that the jury’s verdict would
have been different absent the sum total of the impropri-
eties.’’ (Internal quotation marks omitted.) State v.
Albino, 312 Conn. 763, 790, 97 A.3d 478 (2014).
      I respectfully dissent.
  1
      Although at oral argument before this court, the assistant state’s attorney
suggested that the $25 in Vargas’ possession could have been the money
from drug transactions, the state did not present any evidence regarding
the street value of the quantity of drugs uncovered from the buyers’ car
that would support this theory.
    2
      The prosecutor’s misconduct not only was misleading to the jury and
prejudicial to the defendant, but also may have violated the Rules of Profes-
sional Conduct. Specifically, rule 8.4 of the Rules of Professional Conduct
provides in relevant part that ‘‘[i]t is professional misconduct for a lawyer
to . . . (3) [e]ngage in conduct involving . . . misrepresentation; [or] (4)
[e]ngage in conduct that is prejudicial to the administration of justice . . . .’’
Moreover, rule 4.1 of the Rules of Professional Conduct requires in relevant
part that ‘‘[i]n the course of representing a client a lawyer shall not knowingly:
(1) [m]ake a false statement of material fact to a third person . . . .’’ The
commentary to rule 4.1 makes clear that ‘‘[m]isrepresentations can . . .
occur by partially true but misleading statements or omissions that are the
equivalent of affirmative false statements.’’
    3
      See also United States v. Earle, 375 F.3d 1159, 1165 (D.C. Cir. 2004)
(closing argument improper where ‘‘the prosecutor clearly had every reason
to doubt, and no good reason to support, the inferences he propounded to
the jury’’); United States v. Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993)
(‘‘[I]t is plainly improper for a prosecutor to imply reliance on knowledge
or evidence not available to the jury. It is all the more improper to imply
reliance on a fact that the prosecutor knows to be untrue . . . .’’ [Internal
quotation marks omitted.]); United States v. Kojayan, 8 F.3d 1315, 1321
(9th Cir. 1993) (Although it is not improper for an attorney to argue facts
he believes in good faith might be true, ‘‘[t]he government’s lawyer . . .
made factual assertions he well knew were untrue. This is the difference
between fair advocacy and misconduct.’’); United States v. Della Universita,
298 F.2d 365, 367 (2d Cir.) (‘‘[t]he prosecution has a special duty not to
mislead; the government should, of course, never make affirmative state-
ments contrary to what it knows to be the truth’’), cert. denied, 370 U.S.
950, 82 S. Ct. 1598, 8 L. Ed. 2d 816 (1962).
    4
      Although the state argues that defense counsel also acted improperly
by arguing that there was no evidence that money was exchanged, this
contention fails to recognize the fundamentally different roles that a prosecu-
tor and defense counsel must serve during a criminal trial. Defense counsel
is tasked with arguing that, despite the evidence presented at trial, the state
failed to prove its case beyond a reasonable doubt. Arguing that the record
is devoid of certain evidence that would establish guilt is simply in accor-
dance with defense counsel’s necessary role, which is to ask that the jury
hold the state to its burden of proof.
