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STATE OF CONNECTICUT v. JULIO TORRES

(AC 38571)

Keller, Mullins and Lavery, Js.

Argued May 18—officially released October 4, 2016

(Appeal from Superior Court, judicial district of

Hartford, Dewey, J.)

James B. Streeto, senior assistant public defender,

for the appellant (defendant).

Bruce R. Lockwood, senior assistant state’s attorney,

with whom, on the brief, were Gail P. Hardy, state’s

attorney, and Robin D. Krawczyk, senior assistant

state’s attorney, for the appellee (state).
Opinion

LAVERY, J. The defendant, Julio Torres, appeals from

the judgment of conviction, rendered after a jury trial,

of murder in violation of General Statutes § 53a-54a. On

appeal, the defendant claims (1) the court improperly

admitted evidence of his prior misconduct,(2)the court

provided an incorrect jury instruction regarding the

standard of proof beyond a reasonable doubt, (3) the

prosecutor engaged in impropriety during closing and

rebuttal arguments, and (4) the court erred in failing

to disclose the psychiatric records of a state’s witness

following the court’s in camera inspection of the

records. We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On the night of October 9, 2009, the defendant,

Jorge Zayas,RiccoCorrea, and Jose Serrano were drinking alcohol on the porch behind the defendant’s apartment in Hartford. At one point, the victim and Michael

Rodriguez drove into the well lit parking lot adjacent

to the defendant’s apartment building. When the victim

exited the car, the defendant, Zayas, Correa, and Serrano approached him, and an argument ensued. During

the argument, Correa passed a gun to the defendant.

After taking the gun, the defendant shot the victim once

in the head at close range, killing him.1

Rodriguez, who was standing in the parking lot when

the shooting took place, did not see who shot the victim,

but heard the gunshot and immediately turned around

and saw that the defendant was the only person close

to the victim’s body. Seeing Zayas, Correa, and Serrano

standing twenty to twenty-five feet away, Rodriguez

fled the scene on foot. Correa, who had taken back the

gun used to shoot the victim, pursued Rodriguez while

the defendant, Zayas, and Serrano stood in the parking

lot yelling, ‘‘Kill him. Kill him.’’

The defendant’s girlfriend, J.R.,2 observed the whole

incident from the doorway of the defendant’s apartment. After witnessing the defendant shoot the victim,

J.R. went back into the defendant’s apartment and pretended to be asleep. The defendant ran into the apartment and stated to J.R., ‘‘I killed him. I killed him. Get

up.’’ The defendant told J.R. that the victim ‘‘came over

there fighting for the turf and that he shot him.’’ A few

minutes later, the defendant received a phone call from

Correa, who told the defendant that he had ‘‘mistakenly

shot someone else thinking it was [Rodriguez], but that

he was tossing the gun in the river.’’ J.R. could not

remember the type of gun the defendant used to shoot

the victim.

At approximately 1:15 a.m. on October 10, 2009,

police arrived at the scene of the shooting in response

to a 911 call. Officers found the victim’s body in the

parking lot behind the apartment building, bleeding

from the right side of his head. The victim was pro-
nounced dead at the scene. Susan Williams, an associate

medical examiner for the state, determined that the

cause of death was a single gunshot wound to the right

side of the head. Williams estimated that, on the basis

of soot and stippling patterns around the entrance

wound, the muzzle of the gun was approximately six

to ten inches from the right side of the victim’s head

when it was fired.

On September 4, 2013, the state charged the defendant with murder in violation of § 53a-54a. On October

4, 2013, following a jury trial, the defendant was convicted of murdering the victim. On December 6, 2013,

the court sentenced the defendant to a total effective

sentence of fifty years incarceration. This appeal followed. Additional facts will be set forth as necessary

to our assessment of the issues on appeal.

I

The defendant first claims that the court abused its

discretion by admitting evidence of his prior misconduct, namely, that he had possessed a revolver approximately three months prior to the murder, for the

purpose of establishing that he had the means to shoot

the victim. In support of this claim, the defendant argues

that the evidence was not relevant and that its prejudicial effect outweighed its probative value. In response,

the state argues that the evidence was relevant because

it tended to show that the defendant had access to a

weapon suitable for the commission of the murder and

that this probative value outweighed the evidence’s

prejudicial effect. We agree with the state.

The following additional facts and procedural history

are relevant to this claim. Prior to trial, the state indicated it was seeking to admit the testimony of Eduardo

Colon, who had been the victim of a prior drive-by

shooting allegedly perpetrated by the defendant. On

September 27, 2013, the court held a hearing during

which the prior misconduct evidence was discussed.

The state represented that Colon would testify that on

July 29, 2009, the defendant had shot him with a chrome

revolver during a nonfatal drive-by shooting for which

the defendant was charged with first degree assault.

The state then argued that Colon’s testimony was relevant ‘‘to show that [the defendant] had the means to

commit th[e] crime.’’ In support of this argument, the

state contended that Colon’s testimony regarding the

defendant’s prior access to a revolver was probative

because the witnesses in the present murder had

observed the defendant carrying a gun and the lab analyses of bullet fragments recovered from the victim’s body

suggested that the bullet was fired from a revolver.

In response, the defendant claimed that this evidence,

‘‘while potentially relevant, [was] more prejudicial than

probative because of the credibility issues surrounding’’

the witnesses to the July 19, 2009 incident. The defen-
dant explained that ‘‘some other witness has said that

they saw [the defendant] . . . the evening of the [victim’s shooting] in possession of a revolver,’’ and ‘‘to

. . . try and buttress that witness with this remote

event where those witnesses have credibility issues

themselves’’ would confuse the issues and may ‘‘portray

[the defendant] . . . unfairly . . . not only in possession of a weapon, but using it for violent purposes.’’

The defendant further emphasized that there was not an

established connection between the revolver previously

observed in the defendant’s possession and the shooting

of the victim here, and that the prior incident was

remote in time from the present murder.

The court ruled that the evidence was relevant, but

placed limitations on its admission to alleviate the

defendant’s sole concern that undue prejudice could

result from a detailed discussion of the prior possession. According to the court’s ruling, the state could

inquire only into whetherColon saw the defendant holding a revolver and could not probe into the circumstances and the assault surrounding that prior

possession. Specifically, the court stated: ‘‘You don’t

have to mention what the event was or why they saw

him [with the revolver], just that on a date there was

a gun. Nothing about what the crime was. Nothing about

any of that information. Just very simply, on that date.

I’m going to allow that and that alone because it is probative.’’

At trial, and before the state called Colon as a witness,

the defendant twice elicited testimony regarding the

details of his prior possession of the revolver. First,

through the cross-examination of Edwin Cardona, a

state’s witness and the defendant’s parole officer, the

defendant elicited testimony that Cardona had received

a letter from Detective Andrew Jacobson of the Hartford Police Department that indicated that the defendant had been implicated in a nonfatal shooting that

took place on July 19, 2009. The defendant again elicited

evidence during his cross-examination of Jacobson that

exceeded the bounds of the court’s ruling limiting the

admission of evidence regarding his prior possession

of a revolver. Through Jacobson, the defendant brought

out that he had been a suspect in the July 19, 2009

nonfatal shooting, and thatthe incident involved a driveby shooting of two individuals who were selling heroin

on the street.

Also at trial, the state called Iris Sterling, the victim’s

girlfriend, as a witness. Sterling testified that, on the

night of the murder, she saw the defendant inside his

apartment holding a gun and saying, ‘‘let’s play Russian

roulette’’—an act thatrequires placing a single cartridge

in the cylinder of a revolver. Similarly, J.R. testified

that, on the night of the murder, she saw the defendant

inside his apartment holding a gun, that he was ‘‘always

around guns,’’ but that he did not keep guns inside his
apartment. Additionally, the state’s firearms examiner,

James Stephenson, testified that the bullet fragments

recovered from the victim were consistent with eight

different kinds of revolvers and one kind of semiautomatic pistol.

Following this evidence, the state represented that

it intended to call Colon as a witness. In response, the

defendant renewed his objection to Colon’s testimony.

The defendant argued that Colon’s testimony was not

relevant because the state had not established that the

murder weapon had been a revolver. Specifically, the

defendant argued that none of the state’s witnesses at

trial provided a description of the murder weapon, and

J.R. could not recall the kind of gun the defendant used

to shoot the victim. Given that the state’s witnesses

were unable to provide a description of the murder

weapon, the defendant argued, Colon’s testimony was

not relevant because the state had failed to establish ‘‘a

sufficient linkage’’ between the chrome revolver Colon

observed the defendant carrying on July 19, 2009, and

the murder weapon. The defendant also renewed his

objection on prejudice grounds.

The court overruled the defendant’s objection, finding that Colon’s testimony was relevant and not unduly

prejudicial because the defendant already had elicited

testimony regarding the prior shooting, the very testimony that he claimed would have been unduly prejudicial. On the issue of prejudice, the court stated: ‘‘The

jury already knows, primarily through your cross-examination of [Jacobson] that you put out the information

. . . that there was an accusation involving a gun. So

I don’t think it’s going to be unduly prejudicial and it

does—it is relevant. But the information was brought

out several times to [Jacobson] that when he was—

when you were attempting to challenge the letters, that

your client was arrested for an assault involving a gun.’’

Thereafter, consistent with the court’s ruling limiting

Colon’s testimony, Colon testified that on July 19, 2009,

he saw the defendant carrying a ‘‘[c]hrome plated

revolver.’’ The court then instructed the jury as follows:

‘‘That testimony was offered by the state in an effort

to establish an element of the offense. You can accept

it, you cannot accept it, but it’s not [to] be used for any

other reason including any indication of that character

or propensity to do any type of act.’’ The defendant did

not object to this limiting instruction.

On appeal, the defendant claims that the court abused

its discretion in admitting Colon’s testimony that he

previously had possessed a revolver because the evidence is not relevant and, alternatively, is more prejudicial than probative. We disagree.

‘‘The standard ofreview regarding uncharged misconduct evidence is well established. Evidence of a defendant’s uncharged misconduct is inadmissible to prove
that the defendant committed the charged crime or to

show the predisposition of the defendant to commit

the charged crime. . . . Exceptions to this rule have

been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered

to prove intent, identity, malice, motive, a system of

criminal activity or the elements of a crime. . . . To

determine whether evidence of prior misconduct falls

within an exception to the general rule prohibiting its

admission, we have adopted a two-pronged analysis.

. . . First, the evidence must be relevant and material

to at least one of the circumstances encompassed by

the exceptions. Second, the probative value of such

evidence must outweigh the prejudicial effect of the

other crime evidence. . . . Since the admission of

uncharged misconduct evidence is a decision within

the discretion of the trial court, we will draw every

reasonable presumption in favor of the trial court’s

ruling. . . . We will reverse a trial court’s decision only

when it has abused its discretion or an injustice has

occurred.’’ (Internal quotation marks omitted.) State v.

Franklin, 162 Conn. App. 78, 96, 129 A.3d 770 (2015),

cert. denied, 321 Conn. 905, 138 A.3d 281 (2016).

A

In the present case, the defendant contends that

Colon’s testimony was not relevant because the state

failed to establish that the revolver Colon previously

saw the defendant possess and the murder weapon

were the same gun. This specific argument is unavailing,

however, because this court has already concluded that

‘‘[e]vidence indicating that an accused possessed an

article with which the particular crime charged may

have been accomplished is generally relevant to show

that the accused had the means to commit the crime.

. . . The state does not have to connect a weapon

directly to the defendant and the crime. It is necessary

only that the weapon be suitable for the commission

of the offense.’’ (Citation omitted; emphasis altered;

internal quotation marks omitted.) Id.

In Franklin, a firearms examination determined that

the gun used to kill the victim was a nine millimeter

semiautomatic pistol. Id., 97. At trial, in order to establish that the defendant possessed the means to commit

the crime, the state admitted the testimony of a witness

that, approximately three months before the murder,

she was confronted by the defendant who ‘‘point[ed]

at her what ‘looked like a little gun’ and threatened to

shoot her.’’ Id., 95. The witness testified that she could

not tell whether the gun was a semiautomatic pistol or

a revolver, and that ‘‘all that she saw was the small,

skinny nozzle of the gun and part of the barrel.’’ (Internal quotation marks omitted.) Id. On appeal, the defendant claimed that the witness’ testimony was not

relevant to the issue of whether he possessed the means

to commit the murder because her description of the
gun was not sufficiently similar to the semiautomatic

pistol used to shoot the victim. Id., 97. In rejecting this

claim, this court noted that the defendant’s effort to

establish that the evidence was notrelevant was primarily based on ‘‘speculation that [the witness] only possibly could have seen a revolver, not a pistol.’’ Id.

Comparing the witness’ description of the gun with the

semiautomatic pistol used in the shooting, however,

this court concluded that ‘‘[t]he jury reasonably could

have inferred from [the witness’] testimony that she saw

a handgun, and at that time, the defendant possessed

a weapon suitable for the commission of the offense

charged.’’ Id., 97–98; see also State v. Sivri, 46 Conn.

App. 578, 585, 700A.2d 96 (rejecting claim that there was

insufficient connection between large caliber handguns

recovered from defendant’s residence and murder of

victim, where state presented evidence that victim lost

large quantity of blood in defendant’s family room and

holes in victim’s skull indicated she was killed by large

caliber handgun), cert. denied, 243 Conn. 938, 702 A.2d

644 (1997).

Our review of the record in the present case persuades us that the court did not abuse its discretion in

determining that Colon’s testimony was relevant. Relevance, in this context, is satisfied by a showing that the

prior weapon was ‘‘suitable for the commission’’ of the

present crime. State v. Franklin, supra, 162 Conn. App.

97–98. Suitability is sufficient because ‘‘[t]he state does

not have to connect a weapon directly to the defendant

and the crime. It is necessary only that the weapon be

suitable for the commission of the offense.’’ (Emphasis

omitted.) Id. Here, the evidence adduced at trial established that the revolver that Colon previously observed

in the defendant’s possession was suitable for the murder. At trial, Stephenson testified that, after examining

the bullet fragments recovered from the victim, he

determined that the bullet was consistent with eight

different kinds ofrevolvers and only one kind of semiautomatic pistol. The absence of a spent shell casing at

the scene of the shooting was also consistent with the

use of a revolver. Additionally, Sterling testified that

she saw the defendant inside his apartment on the night

of the shooting holding a gun and saying, ‘‘let’s play

Russian roulette.’’ Although this evidence does not

establish a definitive connection between the revolver

previously observed in the defendant’s possession and

the firearm used to kill the victim, the jury could infer

from this evidence that three months prior to the shooting the defendant possessed and had access to the same

type of firearm used in the shooting.

We further note that the fact that Correa handed the

murder weapon to the defendant moments before the

victim was shot does not render Colon’s testimony less

relevant. Although the defendant argues thatthe murder

weapon could have been Correa’s gun and not the

revolver Colon saw the defendant previously possess,
that argument is unpersuasive in light of Franklin,

which specifically rejects the need ‘‘to connect a

weapon directly to the defendant and the crime.’’ State

v. Franklin, supra, 162 Conn. App. 96. Moreover, the

evidence adduced at trial does not necessarily support

the defendant’s argument. To the contrary, J.R. testified

that throughout the night of October 9, 2009, a group

of individuals, including Correa, was inside the defendant’s apartment and on the back porch drinking alcohol. J.R. and Sterling testified that, during that time

period, they saw the defendant carrying a gun, and

circumstantial evidence supported the inference that

the defendant’s gun was a revolver. Specifically, the

defendant stated, ‘‘let’s play Russian roulette,’’ no shell

casing was recovered from the scene, and the state’s

firearms examiner testified that the bullet fragments

recovered from the victim were consistent with eight

different kinds of revolvers, but only one kind of semiautomatic pistol. Although Correa ultimately passed the

defendant the murder weapon, the jury reasonably

could have inferred that the murder weapon was the

same revolver that J.R. and Sterling saw the defendant

holding earlier that night. Additionally, J.R. testified

that the defendant was ‘‘always around guns,’’ but that

he did not keep guns inside his apartment. Finally, no

evidence was produced at trial that excluded the

revolver Colon previously observed in the defendant’s

possession as the firearm used to commit the murder.

Accordingly, Colon’s testimony was relevant to the

issue of whether the defendant had the means to commit the crime. See State v. Franklin, supra, 96.

B

We next turn to whether the prior misconduct evidence was more prejudicial than probative. Here, the

defendant argues that the probative value of Colon’s

testimony was minimal because the state failed to connect the revolver to the shooting and because it was

cumulative of other evidence. The defendant further

contends that the prejudicial effect of Colon’s testimony, including details that the defendant had been

the perpetratorin a prior shooting, outweighed the testimony’s minimal probative value, and that the court’s

curative instruction exacerbated the prejudicial effect

of the evidence. We disagree.

‘‘Although relevant, evidence may be excluded by the

trial court if the court determines that the prejudicial

effect of the evidence outweighs its probative value.

. . . Of course, [a]ll adverse evidence is damaging to

one’s case, but it is inadmissible only if it creates undue

prejudice so that it threatens an injustice were it to be

admitted. . . . The test for determining whether evidence is unduly prejudicial is not whetherit is damaging

to the defendant but whether it will improperly arouse

the emotions of the jur[ors]. . . . The trial court . . .

must determine whether the adverse impact of the chal-
lenged evidence outweighs its probative value. . . .

Finally, [t]he trial court’s discretionary determination

that the probative value of evidence is not outweighed

by its prejudicial effect will not be disturbed on appeal

unless a clear abuse of discretion is shown. . . .

[B]ecause of the difficulties inherent in this balancing

process . . . every reasonable presumption should be

given in favor of the trial court’s ruling. . . . Reversal

is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done.’’

(Internal quotation marks omitted.) State v. Pena, 301

Conn. 669, 675–76, 22 A.3d 611 (2011).

Our review of the record leads us to conclude that

the court did not abuse its discretion in determining

that the prejudicial effect of Colon’s testimony did not

outweigh its probative value. We do not agree with the

defendant’s contention that Colon’s testimony lacked

probative value because the two guns were not shown

conclusively to be the same, or that the testimony was

entirely cumulative of other evidence. As previously

noted; see part I A of this opinion; evidence that the

defendant previously possessed a weapon, introduced

to show that he had the means to commit the crime

alleged, is relevant and probative if the prior weapon

is a type that is suitable for the commission of the

charged crime. See State v. Franklin, supra, 162 Conn.

App. 97–98. Further, Colon’s testimony was not cumulative of other trial testimony. Although J.R. testified that

the defendant always was around guns, and both J.R.

and Sterling testified that they saw the defendant in

possession of a gun on the night of the crime, neither

witness was able to specify that she saw the defendant

in possession of a revolver. Thus, Colon was the only

witness who provided direct evidence that, prior to

the night of the crime, the defendant had access to a

revolver. This was a contested issue as, during pretrial

arguments, the defendant declined to stipulate that he

was in possession of a revolver on the night of the

murder. Viewed in conjunction with Stephenson’s testimony that the bullet fragments recovered from the victim were consistent with the use of a revolver, and

Sterling’s testimony that, on the night of the murder,

the defendant brandished a gun suitable for Russian

roulette, Colon’s direct testimony that the defendant

previously had access to a revolver carried probative

value.

Likewise, we disagree that Colon’s testimony was

overly prejudicial. First, we note that in the trial court

the defendant’s objection to the evidence on prejudice

grounds was based on the dangerthat testimony regarding the circumstances of his prior possession of a

revolver, specifically, that he shot Colon during a driveby shooting, would be placed before the jury. The court,

however, took care to limit this prejudicial effect by

permitting Colon to testify only that he saw the defendant on July 19, 2009, in possession of a revolver. This
ruling, therefore, precluded the portion of Colon’s testimony that would have caused undue prejudice. See

State v. Pena, supra, 301 Conn. 676 (‘‘[A]ll adverse evidence is damaging to one’s case, but it is inadmissible

only if it creates undue prejudice so that it threatens

an injustice were it to be admitted. . . . The test for

determining whether evidence is unduly prejudicial is

not whetherit is damaging to the defendant but whether

it will improperly arouse the emotions of the jur[ors].’’

[Internal quotation marks omitted.]). Moreover, the

defendant himself elicited testimony about the use of

the revolver in a drive-by shooting before the state

called Colon as a witness. The defendant did so knowing

that the court’s ruling forbade the state from presenting

testimony regarding the drive-by shooting at any point

during the trial. Accordingly, the defendant elicited the

precise testimony he argued was unduly prejudicial

without any prompting from the state and, as a result,

was solely responsible for any undue prejudice that

stemmed from Colon’s limited testimony.3 See State v.

Holley, 160 Conn. App. 578, 631, 127 A.3d 221 (‘‘[i]t is

well settled that [a] defendant cannot rely upon the

admission of evidence which he himself introduced as a

basis for a reversal of his conviction’’ [internal quotation

marks omitted]), cert. granted on other grounds, 320

Conn. 906, 127 A.3d 1000 (2015). Further, Colon’s testimony that the defendant possessed a gun was not likely

to evoke an emotional response from the jury in a case

where the defendant was charged with murder. State v.

Collins, 299 Conn. 567, 588, 10 A.3d 1005 (‘‘[u]ncharged

misconduct evidence has been held not unduly prejudicial when the evidentiary substantiation of the vicious

conduct, with which the defendant was charged, far

outweighed, in severity, the character of his prior misconduct’’ [internal quotation marks omitted]), cert.

denied, 565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193

(2011).

Finally, we decline to review the defendant’s argument that the limiting instruction provided by the court

exacerbated the prejudicial effect of Colon’s testimony.

Overlooking the court’s instruction that the evidence

is ‘‘not [to] be used for any other reason including any

indication of that character or propensity to do any type

of act,’’ the defendant argues that the court’s limiting

instruction improperly permitted the jury to consider

the evidence as ‘‘an element’’ of the offense and, in

that capacity, as propensity evidence. The defendant,

however, did not object to the limiting instruction that

the court issued directly after Colon testified and did

not object to the uncharged misconduct instruction that

the court gave in its final instructions to the jury. See

also part II of this opinion (dismissing as waived defendant’s challenge to jury instruction). Accordingly, we

decline to review the defendant’s unpreserved argument that the court’s limiting instruction exacerbated

the prejudicial effect of the prior misconduct evidence;
see Practice Book § 60-5; State v. William C., 103 Conn.

App. 508, 520 n.6, 930 A.2d 753, cert. denied, 284 Conn.

928, 934 A.2d 244 (2007); and conclude that the court

did not abuse its discretion in admitting the evidence.

II

The defendant next claims that the court provided

an incorrect instruction to the jury regarding the state’s

burden of proof beyond a reasonable doubt. In

response, the state argues that the defendant waived

his challenge to the court’s instructions under State v.

Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011).

The defendant, however, argues that Kitchens does not

apply to the present claim and, alternatively, requests

that we overrule Kitchens. We agree with the state.

On October 3, 2013, prior to instructing the jury, the

court held a charging conference on the record in which

it stated that the parties had received a copy of the

proposed jury instructions earlier that morning for

review. The court then reviewed with counsel each

individual page of the proposed instructions and solicited comments and objections. The defendant did not

object or suggest any changes to the proposed instructions on reasonable doubt at the charging conference,

and did not object to the reasonable doubt instruction

when the charge was read to the jury.

In State v. Kitchens, supra, 299 Conn. 482–83, our

Supreme Court concluded that ‘‘when the trial court

provides counsel with a copy of the proposed jury

instructions, allows a meaningful opportunity for their

review, solicits comments from counsel regarding

changes or modifications and counsel affirmatively

accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential

flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct

appeal.’’

Our careful review of the record in the present case

indicates that the defendant waived his challenge to

the reasonable doubt instructions under Kitchens.

Here, the court provided the defendant with a copy

of the proposed jury instructions, which included the

instruction being challenged on appeal, as well as a

meaningful opportunity to review them. The court then

held a charging conference on the record where it

reviewed the proposed instructions page by page and

solicited the parties’ comments and objections. Nevertheless, the defendant did not object to the reasonable

doubt instruction. Under these circumstances, the

defendant waived his instructional claim.

Our review does not end here, however, because the

defendant argues that Kitchens is not applicable to the

present case because the court did not mark as an

exhibit the proposed jury instructions that were provided to the defendant for review. We disagree with this
argument. The court in Kitchens held that the defendant

impliedly waives his or her constitutional right to challenge jury instructions on appeal ‘‘when the trial court

provides counsel with a copy of the proposed jury

instructions, allows a meaningful opportunity for their

review, solicits comments from counsel regarding

changes or modifications and counsel affirmatively

accepts the instructions proposed or given . . . .’’ Id.

The record here clearly establishes that the defendant

was provided with a copy of the proposed jury instructions, given a meaningful opportunity to review them,

and failed to object to the instructions when the court

read the same instructions to the jury. That the court

did not mark the proposed instructions as a court

exhibit does not alter this analysis.4

III

The defendant next claims that he was denied the

right to a fair trial due to prosecutorial impropriety.

Specifically, the defendant argues that, during closing

and rebuttal arguments, the prosecutor (1) made statements that were speculative and not based on evidence

in the record, and (2) misstated the law regarding the

standard of proof beyond a reasonable doubt. We conclude that none of the statements at issue was improper,

and, consequently, we do not address the defendant’s

claim that the alleged improprieties violated his due

process right to a fair trial.

As an initial matter, we note that the defendant did

not object to any of the challenged statements at trial.

‘‘It is well established law . . . that a defendant who

fails to preserve claims of prosecutorial [impropriety]

need not seek to prevail underthe specific requirements

of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823

(1989), and, similarly, it is unnecessary for a reviewing

court to apply the four-pronged Golding test. . . . Our

Supreme Court has explained that the defendant’s failure to object at trial to each of the occurrences that

he now raises as instances of prosecutorial impropriety,

though relevant to our inquiry, is not fatal to review of

his claims. . . . This does not mean, however, that the

absence of an objection at trial does not play a significantrole in the determination of whetherthe challenged

statements were, in fact, improper . . . . To the contrary, we continue to adhere to the well established

maxim that defense counsel’s failure to object to the

prosecutor’s argument when it was made suggests that

defense counsel did not believe that it was [improper]

in light of the record of the case at the time. . . . With

this maxim in mind, we proceed with our review of

the defendant’s claim[s].’’ (Citations omitted; internal

quotation marks omitted.) State v. Maner, 147 Conn.

App. 761, 782, 83 A.3d 1182, cert. denied, 311 Conn. 935,

88 A.3d 550 (2014).

‘‘[I]n analyzing claims of prosecutorial [impropriety],

we engage in a two step process. The two steps are
separate and distinct: (1) whether [an impropriety]

occurred in the first instance; and (2) whether that

[impropriety] deprived [the] defendant of his due process right to a fair trial. Put differently, [an impropriety

is an impropriety], regardless of its ultimate effect on

the fairness of the trial; whether that [impropriety]

caused or contributed to a due process violation is a

separate and distinct question . . . .’’ (Internal quotation marks omitted.) State v. Franklin, supra, 162 Conn.

App. 100. ‘‘[W]hen a defendant raises on appeal a claim

that improper remarks by the prosecutor deprived the

defendant of his constitutional right to a fair trial, the

burden is on the defendant to show, not only that the

remarks were improper, but also that, considered in

light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.’’

(Internal quotation marks omitted.) State v. Maner,

supra, 147 Conn. App. 783.

‘‘When reviewing the propriety of a prosecutor’s

statements, we do not scrutinize each individual comment in a vacuum but, rather, review the comments

complained of in the context of the entire trial. . . .

Finally, when a prosecutor’s potentially improper

remarks are ambiguous, a court should not lightly infer

that a prosecutor intends an ambiguous remark to have

its most damaging meaning orthat a jury, sitting through

a lengthy exhortation, will draw that meaning from the

plethora of less damaging interpretations.’’ (Citation

omitted; internal quotation marks omitted.) State v.

Felix R., 319 Conn. 1, 9, 124 A.3d 871 (2015).

A

We first address the defendant’s claim that the prosecutor improperly engaged in speculation and commented on facts not in evidence when she argued to

the jury during closing argumentthat‘‘[J.R.] was present

at the installation [of the monitoring unit],’’ and that

‘‘people in that area are familiar with electronic bracelets . . . .’’ See footnote 1 of this opinion.

‘‘We long have held that 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. . . . However, the prosecutor may argue the

state’s case forcefully, [provided the argument is] fair

and based upon the facts in evidence and the reasonable

inferences to be drawn therefrom . . . . Furthermore,

[c]ounsel must be allowed a generous latitude in argument, as the 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. . . . While a prosecutor is not

permitted to interject his own opinion generally, he

must be permitted to speak to the cumulative evidence

he has put forth during the course of trial. . . . Likewise, [w]e must give the jury 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.’’ (Citations omitted; internal quotation

marks omitted.) State v. Franklin, supra, 162 Conn.

App. 101.

We conclude that the prosecutor’s comment to the

jury that, ‘‘[m]aybe, [J.R.] was present at the installation,’’ properly was based upon the evidence elicited

at trial. At trial, J.R. testified that, prior to the shooting,

she assisted the defendant in testing the range of his

bracelet. Additionally, Matthew Kennedy, a manager

from the electronic monitoring company, testified that

range testing could only be conducted when the monitoring unit was initially installed. The prosecutor’s comment, therefore, was a reasonable inference that

reconciled both sets of testimony.

Likewise, we conclude that the prosecutor’s comment that ‘‘the people in that area are familiar with

the electronic bracelets,’’ could reasonably have been

inferred from evidence in the record. Kennedy testified

that the monitoring unit in the defendant’s residence

had a range of 150 feet. The state admitted an electronic

monitoring report into evidence that revealed that from

October 9 through October 12, 2009, the defendant’s

monitoring unit had detected eight other electronic

bracelets in that range. Thus, during that three day

period, there were at least eight other individuals in

close proximity to the defendant’s residence who were

subject to electronic monitoring. The jury reasonably

could have inferred from this evidence that people in the

defendant’s area were generally familiar with electronic

monitoring bracelets. Accordingly, the prosecutor’s

comments to the jury were not improper.

B

We next address the defendant’s claim that the prosecutor misstated the law regarding the standard for proof

beyond a reasonable doubt during her closing argument. During her closing argument, the prosecutor

made the following remark: ‘‘No one gave you any reason to believe that anyone other than the defendant

killed [the victim]. And no one gave you a reason to

believe the defendant couldn’t have been the one to

kill [the victim].’’ During rebuttal argument, the state

argued: ‘‘And the last thing I want to leave you with is

that reasonable doubt is not, I don’t know, maybe it

happened a different way. I don’t know, maybe somebody else did it. I don’t know, maybe we’re not sure.

Reasonable doubt is a real doubt . . . an honest doubt,

a doubt which you can attach a reason to. I don’t believe

that [J.R.] is telling the truth because. I don’t believe

[Rodriguez] is telling the truth because. A doubt that

you can actually enunciate. A doubt that you can

express, not some like oh, I don’t know, maybe something else. Not based on speculation. Not based on
conjecture. If you believe [J.R.], then [the defendant]

shot and killed [the victim]. And if you believe . . .

Rodriguez, then [the defendant] shot and killed [the

victim]. And if you look at their testimony in light of

everybody else’s, and all the things that you know, and

the fact that the electronic bracelet does not provide

an alibi for him, then you have to find him guilty and

that’s what I’m asking you to do.’’ (Emphasis added.)

On appeal, the defendant argues that the prosecutor’s

comments improperly suggested to the jury thatreasonable doubt required the jurors to articulate a reason in

order to find the defendant not guilty, which impermissibly shifted the burden to the defendant to prove his

innocence. We disagree.

It is well established that ‘‘prosecutors are not permitted to misstate the law . . . and suggestions that distort the government’s burden of proof are likewise

improper . . . because such statements are likely to

improperly mislead the jury.’’ (Internal quotation marks

omitted.) State v. Herring, 151 Conn. App. 154, 172, 94

A.3d 688, cert. granted on other grounds, 314 Conn.

914, 100 A.3d 849 (2014). However, ‘‘[w]e consistently

have held that the definition of reasonable doubt as a

real doubt, an honest doubt, a doubt which has its

foundation in the evidence or lack of evidence, as a

doubt for which a valid reason can be assigned, and as

a doubt in which the serious affairs which concern you

in every day life you would pay heed and attention to

does not dilute the state’s burden of proof when such

definitions are viewed in the context of an entire [jury]

charge.’’ (Internal quotation marks omitted.) State v.

Ferguson, 260 Conn. 339, 371, 796 A.2d 1118 (2002);

see also State v. Ellis, 232 Conn. 691, 705, 657 A.2d 1099

(1995) (rejecting claim that state’s burden of proof was

diluted on basis of jury instruction that ‘‘[a] reasonable

doubt is a doubt for which a valid reason can be

assigned’’ [internal quotation marks omitted]).

In the present case, none of the prosecutor’s remarks,

viewed in conjunction with the entirety of the closing

and rebuttal arguments, improperly misstated the law

regarding reasonable doubt. See State v. Ferguson,

supra, 260 Conn. 371; State v. Ellis, supra, 232 Conn.

705. Moreover, the prosecutor did not misstate the law

when she commented to the jury that, ‘‘I don’t believe

that [J.R.] is telling the truth because. I don’t believe

[Rodriguez] is telling the truth because.’’ In view of the

context in which these statements were made, it is clear

that the prosecutor merely was encouraging the jury

to determine the credibility of the state’s witnesses on

the basis of the actual evidence presented at trial rather

than their own speculation. This court previously

rejected a claim of prosecutorial impropriety where the

comments ‘‘directed the jury to do exactly what it was

supposed to do—weigh the credibility of the witness

in accordance with all of the evidence put before it in
the courtroom and not engage in speculation. . . . Asking the jury to believe a witness unless there is evidence

to discredit the witness is a proper request and in no

way shifts the burden of [proof] from the state to the

defendant.’’ (Citation omitted.) State v. Betancourt, 106

Conn. App. 627, 641, 942 A.2d 557, cert. denied, 287

Conn. 910, 950 A.2d 1285 (2008). Because the prosecutor’s comments did no more than discourage speculation, they were not improper.

IV

The defendant’s final claim is that the trial court

abused its discretion in failing to release all of J.R.’s

psychiatric records to the defense following an in camera review of the records. We disagree.

The following additional facts and procedural history

are relevant to our resolution of this claim. Prior to

trial, the state subpoenaed J.R.’s mental health records

from Capital Region Mental Health Center, where she

had been a patient from June, 2008, to March, 2009,

and Hartford Behavioral Health, where she had been

a patient from August, 2011, to September, 2013. On

September 27, 2013, the defendant filed a motion

requesting that the court review J.R.’s mental health

records in camera and turn over to the defense any

material from the records that would be relevant to

J.R.’s testimonial capacity. On September 27, 2013, the

court held a hearing on the defendant’s motion, where

it determined that the defendant had made the requisite

preliminary showing to support an in camera review of

the records. The court then reviewed the records in

camera. On September 30, 2013, after reviewing the

records, the court stated on the record that ‘‘[it had]

go[ne] over [J.R.’s] files from both Hartford Behavioral

Health and the Capital Region, and gave to [defense]

counsel anything that was relevant concerning credibility, ability to testify, anything in that regard, and that

would be needed for trial.’’

‘‘Upon inspecting the records in camera, the trial

court must determine whether the records are especially probative of the witness’ capacity to relate the

truth orto observe,recollect and narrate relevant occurrences. . . . If the court determines that the records

are probative, the state must obtain the witness’ further

waiver of his privilege concerning the relevant portions

of the records for release to the defendant, or have the

witness’ testimony stricken. If the court discovers no

probative and impeaching material, the entire record

of the proceeding must be sealed and preserved for

possible appellate review. . . . Once the trial court has

made its inspection, the court’s determination of a

defendant’s access to the witness’ records lies in the

court’s sound discretion, which we will not disturb

unless abused.’’ (Internal quotation marks omitted.)

State v. Slimskey, 257 Conn. 842, 855–56, 779 A.2d 723

(2001). On appeal, the appellate tribunal reviews the
confidential records to determine whether the trial

court abused its discretion in concluding that no information contained therein is ‘‘especially probative of the

victim’s ability to know and correctly relate the truth so

as to justify breaching their confidentiality in disclosing

them to the defendant.’’ State v. Storlazzi, 191 Conn.

453, 460, 464 A.2d 829 (1983). ‘‘We are mindful that

the restriction of a defendant’s access to a witness’

confidential records implicates the defendant’s constitutional right to impeach and discredit state witnesses.’’

(Internal quotation marks omitted.) State v. Francis,

267 Conn. 162, 172, 836 A.2d 1191 (2003).

Our independent review of J.R.’s mental health

records, viewed in conjunction with the entire trial transcript, confirms the court’s conclusion that the material

contained therein that was not disclosed by the court is

notrelevant to J.R.’s credibility or capacity as a witness.

Accordingly, we conclude that the court properly exercised its discretion by refusing to disclose certain portions of the records to the defense.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant was on parole at the time of the shooting and was required

to wear an ankle bracelet to ensure that he complied with a 9 p.m. to 5

a.m. curfew. There was a monitoring unit inside the defendant’s apartment

that would indicate to the monitoring agency if the defendant exceeded a

range of approximately 150 feet. Police determined that the victim’s body

was located approximately 125 feet from the monitoring unit.

2 We refer to this witness by her initials because we discuss her privileged

psychiatric records. See State v. Santos, 318 Conn. 412, 415 n.2, 121 A.3d

697 (2015).

3 We further reject the defendant’s claim that the court’s pretrial ruling

to admit Colon’s testimony compelled him to cross-examine Jacobson and

Cardona about the defendant’s use of the revolver in a nonfatal shooting.

In its pretrial ruling, the court explicitly stated, and then reiterated upon

the defendant’s request for clarification, that Colon could not testify as to

the use of the revolver in the drive-by shooting or that the incident resulted

in criminal charges against the defendant. The defendant thus made an

unprompted strategic decision to elicit the potentially inflammatory evidence from Jacobson and Cardona in order to impeach their credibility and

to prevent the jury from speculating about the details of the July 19, 2009

incident. That this tactic proved ineffective does not provide the defendant

with grounds to overturn his conviction on appeal. See State v. Gibson, 270

Conn. 55, 67, 850 A.2d 1040 (2004) (‘‘[t]o allow [a] defendant to seek reversal

[after] . . . his trial strategy has failed would amount to allowing him to

induce potentially harmful error, and then ambush the state [and the trial

court] with that claim on appeal’’ [internal quotation marks omitted]); see

also State v. Clark, 48 Conn. App. 812, 820 n.6, 713 A.2d 834 (‘‘[a]n appellant

cannot create a reviewable claim because his appellate counsel disagrees

with the strategy of his trial counsel’’), cert. denied, 245 Conn. 921, 717 A.2d

238 (1998).

4 We also are unable to accept the defendant’s invitation to overrule Kitchens. ‘‘[T]his court will notreexamine orreevaluate SupremeCourt precedent.

Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide.’’ (Internal quotation marks omitted.)

State v. Billie, 123 Conn. App. 690, 706, 2 A.3d 1034 (2010).