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STATE OF CONNECTICUT v. MATTHEW

O’BRIEN-VEADER

(SC 19038)

Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and

Vertefeuille, Js.

Argued January 14—officially released September 8, 2015

James B. Streeto, assistant public defender, for the

appellant (defendant).

James A. Killen, senior assistant state’s attorney,

with whom, on the brief, were Maureen Platt, state’s

attorney, and Terrence Mariani and Amy L. Sedensky,

senior assistant state’s attorneys, for the appellee

(state).
Opinion

ROBINSON, J. The principal issue in this appeal

requires us to determine when a prosecutor’s apparent

breach of a trial court ruling becomes prosecutorial

impropriety implicating a defendant’s due process right

to a fair trial, rather than an evidentiary matter without

constitutional import. The defendant, Matthew O’BrienVeader, appeals1

from the judgment of the trial court,

rendered after a jury trial, convicting him of murder in

violation of General Statutes § 53a-54a (a),2 kidnapping

in the second degree in violation of General Statutes

§ 53a-94 (a), and felony murder in violation of General

Statutes § 53a-54c. On appeal, the defendant claims that

he is entitled to a new trial because: (1) numerous

instances of prosecutorial impropriety during the crossexamination of the defendant’s expert witness and closing arguments deprived him of his right to a fair trial;

(2) the trial court improperly denied his motions for a

mistrial; (3) the evidence is insufficient to support his

kidnapping conviction under State v. Salamon, 287

Conn. 509, 949 A.2d 1092 (2008); and (4) the trial court

improperly precluded the testimony of two witnesses

who would have corroborated his defense of extreme

emotional disturbance. We disagree with all of these

claims and, accordingly, affirm the judgment of the

trial court.

The record reveals the following facts, which the jury

reasonably could have found, and procedural history.

In the spring of 2009, the defendant was twenty-one

years old and working for a residential construction

company. He shared an apartment in Waterbury with

several friends and coworkers in a multifamily house

on East Liberty Street. In June, 2009, the defendant quit

his job and moved out of the apartment, despite being

invited to remain there. The defendant then moved into

an abandoned factory building in Waterbury where the

victim, Joed Olivera, lived. The two men, who had been

friendly since the defendant was fourteen years old,

lived on the building’s third floor, which was full of

garbage and lacked power and water. They shared a

large mattress in that makeshift living space.

The relationship between the defendant and the victim rapidly deteriorated. The defendant stated that the

victim ‘‘had been making some comments’’ that ‘‘made

[him] feel uncomfortable.’’ After the defendant confronted the victim about a perceived sexual advance,

the victim told the defendant that he had ejaculated on

him one night. Because of his increasing anger over

what the victim had told him, on June 8, 2009, the

defendant checked into a motel with his girlfriend,

Samantha O’Connor. At the motel, the defendant told

O’Connor about his discomfort with the victim, and his

intention to kill him.

The following day, June 9, 2009, the defendant
returned to the factory. In a statement to police, the

defendant recounted the events of that day as follows:

‘‘I just hung out with [the victim] all day at the factory.

[The victim] said it was safe and he wasn’t going to do

anything to me. I told [the victim] that if he had some

kind of crush on me then he had to tell me so I could

leave. I told [the victim] again that I had a girlfriend

and I am not a fag. I asked him if I could trust him and

he said ‘yes.’ Eventually I went to sleep . . . in the

corner of the bed. But before I went to sleep I had a

knife on me. . . . I went to sleep with the knife because

if [the victim] tried any of the faggot shit with me I was

going to kill him. If I felt a hand in the wrong place I

probably would have cut his hand off. . . . I fell asleep

and nothing happened that night.’’

The defendant’s statement continued: ‘‘For some reason when I woke up I felt like I was violated, I kept

thinking about [the victim] saying he jerked off on me.

Every minute that went by, I got madder and madder.

[The victim] gave me [$10] and asked me to go [buy]

beer . . . . I took the money and . . . bought a [$5]

bag of . . . marijuana. I went back to the factory and

stayed on the first floor and smoked some of the [marijuana]. I was pacing back and forth thinking about what

I was going to do to [the victim]. I decided that I needed

to kill [the victim] for what he did to me. I wanted

answers from him and I was going to get them before

I killed him.’’

The defendant then went upstairs to the third floor

to see the victim, who asked why he had not purchased

any beer. Following an angry exchange, in which the

defendant asked the victim why he had ejaculated on

him and the victim accused the defendant of being

‘‘selfish and . . . trying to screw him over’’ because of

the beer money, the confrontation turned physical. The

defendant believed that the victim saw his knife, which

the defendant had hidden in the sleeve of his sweatshirt,

and the victim started moving toward a second knife

that was sticking out of a nearby wall. At that point,

the defendant took the second knife out of the wall,

grabbed the victim by the shoulder, and tried to throw

him down a flight of stairs that led to the second floor.

When the victim caught himself in the middle of the

staircase, the defendant began to beat him repeatedly

with a pair of crutches that the victim used because he

had a foot injury.

The defendant then tried to push the victim through

a hole in the floor at the bottom of the stairs so that

the victim would fall down to the first floor. When the

victim’s leg and part of his body were in the hole, he

pleaded and apologized to the defendant, who continued to yell at him, ‘‘[w]hy did you do this to me . . .

I trusted you, you were like a father to me.’’ After the

victim climbed out of the hole, the defendant hit him

with a metal rod and his fists. The defendant subse-
quently forced the victim at knifepoint to go back up

the stairs, so he could push him down a larger hole

between the third and second floors. The defendant

stated that he wanted the victim ‘‘to suffer and be tortured.’’ The defendant then pushed the victim through

that hole, causing him to land on wood and debris on

the second floor below. As the victim continued to

plead with the defendant, the defendant hit him with a

fluorescent light tube, and then stabbed him in the neck,

chest, shoulder, and head with the dagger more than

thirty times until the victim appeared dead.3 The defendant then covered the victim’s body with debris, and

gathered his belongings from the third floor.

After cleaning himself up and burying his blood covered knife and sweatshirt nearby, the defendant purchased a forty ounce container of Natural Light beer,

returned to the factory, and poured some of it on the

victim’s body ‘‘because . . . it was his favorite.’’ While

sitting on the third floor, the defendant saw a note

inviting him and the victim to come to the East Liberty

Street house to meet some friends, among whom were

Jason Benoit and Gary Peden. The defendant visited

his friends at their house, and when Benoit asked the

defendant where the victim was, the defendant—with

no change in his ordinary demeanor—confessed what

he had done. Benoit did not believe the defendant, so

the defendant brought him to the factory and showed

him the victim’s body. Benoit and the defendant then

went to pick up O’Connor at her grandmother’s house

in Naugatuck. The defendant also sought to retrieve his

tools so that Benoit and Corey Bosse, another friend,

could pawn them for him.

After he confessed to her, O’Connor did not believe

what the defendant had done and wanted to see the

body, so the defendant again returned to the factory

with her, Benoit, and another friend, Dominic Wells.

O’Connor and the defendant then went to Saint Mary’s

Hospital in Waterbury where the defendant received

treatment for cuts to his hand sustained during his

attack on the victim.

The defendant and O’Connor spent that night at his

friends’ house on East Liberty Street. The following

day, the defendant decided to leave Connecticut, and

he and O’Connor began to walk to her grandmother’s

home in Naugatuck. In the meantime, Bosse reported

the defendant’s actions to the Waterbury police, who,

with the subsequent assistance of Benoit, located the

victim’s body on June 11, 2009. Waterbury police officers subsequently apprehended the defendant on his

walk to Naugatuck, and he later confessed to Detectives

Michael Slavin and Orlando Rivera.

The state charged the defendant with murderin violation of § 53a-54a (a), felony murder in violation of § 53a54c, and kidnapping in the second degree in violation

of § 53a-94 (a). The case was tried to a jury, and the
defendant did not contest having killed the victim, but

asserted a defense of extreme emotional disturbance,

which, under § 53a-54a, would reduce his murder conviction to manslaughterin the first degree in violation of

General Statutes § 53a-55 (a). The defendant presented

this case primarily through the expert testimony of Seth

Feuerstein, a psychiatrist, who opined that, because of

the defendant’s severe homophobia, his actions at the

time of the attack constituted an emotional ‘‘reaction,’’

albeit one without a ‘‘formal psychiatric diagnosis

. . . .’’4 Subsequently, the jury returned a verdict finding

the defendant guilty on all counts, and that he had not

proven the affirmative defense of extreme emotional

distress by a preponderance of the evidence. The trial

court rendered a judgment of conviction in accordance

with the jury’s verdict, and sentenced the defendant to

a total effective sentence of forty-seven years imprisonment.5 This direct appeal followed.

On appeal, the defendant claims that: (1) numerous

acts of prosecutorial impropriety during both the crossexamination of Feuerstein and closing arguments warrant reversal of his conviction; (2) the trial court

improperly denied the defendant’s motions for a mistrial; (3) the evidence is insufficient to support the kidnapping and felony murder convictions; and (4)the trial

courtimproperly precluded two defense witnesses from

testifying. Additional relevant facts and procedural history will be set forth when necessary.

I

PROSECUTORIAL IMPROPRIETY

We begin with the defendant’s claim that the trial

prosecutor6

‘‘committed repeated, flagrant and egregious improprieties’’ during the cross-examination of

Feuerstein and closing arguments, which deprived him

of a fair trial. We address each specific claim of impropriety in turn.7

The following general background principles guide

our analysis. ‘‘[A] claim of prosecutorial impropriety

. . . even in the absence of an objection, has constitutional implications and requires a due process analysis

under State v. Williams, 204 Conn. 523, 535–40, 529 A.2d

653 (1987). . . . In analyzing claims of prosecutorial

impropriety, we engage in a two step process.8

. . .

The two steps are separate and distinct: (1) whether

[an impropriety] occurred in the first instance; and (2)

whether that [impropriety] deprived a defendant of his

due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect

on the fairness of the trial; whether that [impropriety]

[was harmful and thus] caused or contributed to a due

process violation is a separate and distinct question

. . . .’’ (Citations omitted; footnote added; internal quotation marks omitted.) State v. Wilson, 308 Conn. 412,

434, 64 A.3d 91 (2013). The defendant bears the burden
of satisfying both of these analytical steps. See State v.

Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012). In

evaluating whether a defendant has carried that burden,

we recognize that prosecutorial inquiries or comments

that might be ‘‘questionable’’ when ‘‘read in a vacuum’’

often are, indeed, appropriate when ‘‘review[ed] . . .

in the context of the entire trial.’’ (Internal quotation

marks omitted.) State v. Fauci, 282 Conn. 23, 45, 917

A.2d 978 (2007). Accordingly, we supply in the footnotes

relatively lengthy transcript excerpts that are necessary

to put the challenged remarks and questions in their

proper context.

A

Whether the Prosecutor Improperly Used Sarcasm,

Personal Attacks, and Appeals to Emotion during

Cross-Examination

We begin with the defendant’s challenges to certain of

the prosecutor’s questions during his cross-examination

of Feuerstein as containing improper sarcasm, personal

attacks, and emotional appeals, namely:(1) a characterization of the defendant as ‘‘ ‘a mean and nasty person

who was looking to kill somebody’ ’’; (2) a query that

Feuerstein’s ‘‘ ‘testimony here is not really based on any

hard science’ ’’; (3) creating images of the ‘‘defendant

engaged in a murderous fight over $10’’; and (4) a

‘‘sneering comparison of the $10 given by the victim to

the defendant to . . . Feuerstein’s hourly rate . . . .’’

In response, the state contends that, viewed in context,

these questions were part of a legitimate challenge to

the premise and reliability of Feuerstein’s expert testimony, including the exploration of alternative explanations for the defendant’s conduct besides extreme

emotional distress. Having reviewed these claims in the

context of the full record, we conclude that only the

‘‘mean and nasty’’ characterization was improper.

‘‘A basic and proper purpose of cross-examination

of an expert is to test that expert’s credibility. . . .

Thus, [i]t is well established that an expert witness can

be examined concerning the factual basis of his [or her]

opinion. . . . Consequently, [i]n cases [in which] the

defendant places his [or her] mental status in issue, the

basis for a psychiatric expert’s opinion is one of the

things that the trier of fact may consider in evaluating

the testimony of that expert.’’ (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn.

318, 327, 746 A.2d 761 (2000). ‘‘Though it is manifestly

the purpose of cross-examination to expose to the jury

facts from which it may gauge the credibility of an

expert witness . . . a prosecutor may not express his

own opinion of the witness’ credibility, such as by

engaging in a line of questioning designed to mock

and belittle that witness.’’ (Citations omitted; emphasis

omitted.) State v. Wilson, supra, 308 Conn. 437–38.

Further, it is well settled that a ‘‘prosecutor may not
appeal to the emotions of the jurors by engaging in

character assassination and personal attacks against

either the defendant or one of his witnesses. . . . A

prosecutor may not ask a question or make a comment

during cross-examination that suggests that the defendant has a bad character or propensity for criminal

behavior.’’ (Citation omitted.) State v. Warholic, 278

Conn. 354, 389–90, 897 A.2d 569 (2006). ‘‘It must be

acknowledged that the line between comments thatrisk

invoking the passions and prejudices of the jurors and

those that are permissible rhetorical flourishes is not

always easy to draw. The more closely the comments

are connected to relevant facts disclosed by the evidence, however, the more likely they will be deemed

permissible.’’ State v. Albino, 312 Conn. 763, 773, 97

A.3d 478 (2014).

1

‘‘Mean and Nasty Person’’ Comment

We begin with the defendant’s claim that the prosecutor improperly referred to him during cross-examination as a ‘‘mean and nasty person who was looking to

kill somebody.’’ Read in context, we agree with the

defendant that this reference was an inappropriate personal attack that warranted the trial court’s exercise

of its discretion to sustain the defendant’s objection to

that question. A review of the transcript demonstrates

that the ‘‘mean and nasty’’ comment apparently was

posited as an alternative explanation to Feuerstein’s

point that the defendant’s act was an uncharacteristic

extreme emotional reaction to what he perceived as

sexual misconduct by the victim.9 Contrary to the state’s

arguments, this comment was a gratuitous, crudely

phrased, and inflammatory description that was not

necessary to advance the prosecutor’s otherwise well

supported point, namely, that Feuerstein’s assessment

was based on an apparently incomplete picture of the

defendant’s psychiatric history. Cf. State v. Andrews,

313Conn. 266, 295–96, 96A.3d 1199 (2014)(prosecutor’s

description of defendant as ‘‘ ‘hardened criminal’ ’’ was

‘‘not denigrating and sarcastic but fairly described the

defendant in language reflecting his criminal past’’).

The prosecutor’s reference to the defendant as ‘‘a mean

and nasty person who was looking to kill somebody’’10

was particularly gratuitous given that it was uncontested that the defendant had committed the homicidal

act in this case.11 Accordingly, we conclude that this

reference to the defendant as a ‘‘mean and nasty person

who was looking to kill somebody’’ constituted prosecutorial impropriety.12

2

Other Challenged Questions

We next turn to the defendant’s challenges to the

prosecutor’s (1) suggestion that Feuerstein’s ‘‘ ‘testimony here is not really based on any hard science,’ ’’
(2) representation, during cross-examination, that the

‘‘defendant engaged in a murderous fight over $10,’’ and

(3) ‘‘sneering comparison of the $10 given by the victim

to the defendant to . . . Feuerstein’s hourly rate

. . . .’’

We first conclude that the prosecutor’s question asking whether Feuerstein would agree ‘‘that the substance

of [his] testimony here is not really based on any hard

science,’’ was,read in context, not a gratuitous personal

attack on Feuerstein. Rather, that statement was a

proper—albeit aggressively phrased—attack on the

credibility of Feuerstein’s opinion by questioning him

about the methods that yielded the underlying data.13

See State v. Wilson, supra, 308 Conn. 439–41 (concluding that prosecutor’s characterization of inexperienced

expert witness’ work on case ‘‘as a ‘maiden voyage’ ’’

was not improper ad hominem attack, but also concluding that it was improper name calling for prosecutor

to call expert ‘‘ ‘Pete the carpenter’ ’’ or ‘‘ ‘piece of

work’ ’’). Contrary to the defendant’s arguments in his

reply brief, the statement at issue in this case is not

comparable to those contemplated in State v. Maguire,

310 Conn. 535, 556–58, 78 A.3d 828 (2013), wherein we

held, inter alia, that it was improper denigration and

belittling of the role of defense counsel for the prosecutor to describe the defense theory as ‘‘ ‘smoke and mirrors,’ ’’ or to misrepresent the theory of defense as

asking the jury to condone child sexual abuse.

We similarly disagree with the defendant that the

prosecutor improperly made a ‘‘disdainful comparison

of $10 to [Feuerstein’s] stated hourly rate,’’ or used

cross-examination questions to create the image of the

‘‘defendant engaged in a murderous fight over $10

. . . .’’ In context, those questions appear intended to

highlight the importance of $10 to the defendant and

the victim, who were homeless men, and make the point

that a relatively insignificant amount of money could

motivate a homicide, thus providing an alternative

explanation for Feuerstein’s theory that the killing was

an emotional response to sexual advances by the victim.14 Nothing in this line of questions referred to

Feuerstein’s compensation specifically, but rather, simply highlighted the fact that the same sum of money

might mean different things to persons of different economic circumstances.

In sum, these questions—although abrasively

worded—are rooted in the evidence in the record and

do not begin to approach the egregiousness of those

at issue in State v. Maguire, supra, 310 Conn. 535. We

conclude, therefore, that these questions did not

amount to an improper personal attack on Feuerstein.

B

The Prosecutor’s Disregard of Certain Court Orders

The defendant next claims that the prosecutor
improperly flouted numerous orders of the trial court

while cross-examining Feuerstein. Specifically, the

defendant challenges the prosecutor’s apparent: (1) reference in front of the jury to the trial court’s ruling

holding certain of the defendant’s medicalrecords inadmissible for purposes of cross-examination; (2) disregard of the trial court’s admonitions to phrase his

questions to Feuerstein as hypotheticals, rather than

assertions of fact; and (3) violation of a court order

requiring the disclosure to the defendant of all

uncharged misconduct evidence.

It ‘‘is well settled that prosecutorial disobedience of a

trial court order, even one that the prosecutor considers

legally incorrect, constitutes improper conduct.’’15 State

v. Ortiz, 280 Conn. 686, 704, 911 A.2d 1055 (2006). In

many cases, however, this black letter principle is easier

stated than applied. A prosecutor’s advocacy obligations may occasionally drive him or her close to the

line drawn by a trial court order regarding the use of

certain evidence. See, e.g., State v. Warholic, supra,

278 Conn. 406–407 (prosecutor did not violate order

precluding questions about substance abuse treatment,

despite fact his questions about substance abuse itself

resulted in warning from trial court that ‘‘this question

concerning prejudicial and collateral matters put him

‘a half a step away from a mistrial’ ’’); State v. Williams,

102 Conn. App. 168, 181, 926 A.2d 7 (‘‘[a]lthough the

prosecutor may have gone to the edge of the court’s

order, we cannot say on the basis of the record before

us that he deliberately violated the ruling or that he

intended to undermine the authority of the court’’), cert.

denied, 284 Conn. 906, 931 A.2d 267 (2007).

Even when it is determined that a prosecutor has

breached a trial court order, it can be difficult to distinguish between a mere evidentiary misstep and a potential due process violation. Our cases do, however,

provide some guiding principles. Not every misstep by

a prosecutor that exceeds the bounds of a trial court

order rises to the level of prosecutorial impropriety

that implicates a defendant’s due process rights, thus

requiring resort to the second step in the prosecutorial

impropriety analysis. See State v. Santiago, 269 Conn.

726, 742, 850 A.2d 199 (2004) (‘‘it is the severity of the

misconduct, considered in the context of the specific

facts and circumstances of a particular case, as opposed

to the intrinsic nature of the impropriety, that determines whether an impropriety is evidentiary or of constitutional magnitude’’); accord State v. Gibson, 302

Conn. 653, 663 n.4, 31 A.3d 346 (2011) (acknowledging

that ‘‘there may be some overlap between the factors

that the reviewing court considers when determining

whether the prosecutor’s conduct was improper and

those that it considers when conducting its constitutional analysis’’).

Whether a prosecutorial question or comment that
runs afoul of a trial court order implicates a defendant’s

due process rights is a case specific determination. This

determination turns on the degree to which the breach

undermines a trial court’s ruling that protects the integrity of the fact-finding process by restricting the admission of unreliable or unduly prejudicial evidence. See

State v. Maguire, supra, 310 Conn. 558–60 (reference

in objection to ‘‘ ‘full interview, and that’s not in evidence’ ’’ in questioning expert about inconsistencies in

victim’s statement undermined decision for prosecutor

and defendant to redact irrelevant portions of forensic

interview transcript); State v. Payne, supra, 303 Conn.

565–66 (improper for prosecutor to link murder and

jury tampering cases in summations when trial court

stated it would not indicate that cases were legally

related or permit prosecutor to argue that jury tampering was consciousness of guilt); cf. State v. Ubaldi, 190

Conn. 559, 573–74, 462 A.2d 1001 (unfair remark during

summations asking jury to draw negative inference

from witness’ absence that ‘‘implied that the defendant

was obligated to produce a witness whose invocation

of his constitutional right made it impossible to present

his testimony,’’ particularly when that witness ‘‘had

been identified as a ‘bookie,’ ’’ thus ‘‘undermin[ing] the

authority of the trial court’s ruling that such a matter

should not be considered by the jury’’), cert. denied,

464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).16

To this end, a comment or question is more likely to

rise to the level of constitutional impropriety when it

raises the specter of a prosecutor improperly prejudicing the jury by interjecting his or her personal knowledge of facts beyond the record. See State v. Maguire,

supra, 558–60. With this standard in mind, we turn to

the defendant’s specific claims of violations.

1

Reference to Medical Records Not in Evidence

Relying on State v. Maguire, supra, 310 Conn. 535, the

defendant first contends that the prosecutorimproperly

asked a question that included a ‘‘stage whisper’’17 about

the trial court’s ruling that had deemed certain of the

defendant’s medical records inadmissible for purposes

of cross-examination. Specifically, the challenged question by the prosecutor included this preface: ‘‘Okay.

And now, the records aren’t allowed to come in, but

having . . . .’’ The state ‘‘does not dispute that this

comment should not have been made,’’ but contends

that ‘‘the record is inadequate to determine whether

this was truly an instance of prosecutorial impropriety

or . . . merely a matter of an improperly phrased question and, therefore, simply a claim of evidentiary error.’’

The state also contends that the remark was a ‘‘prefatory comment’’ that, when read in context, did not convey to the jury any ‘‘ ‘special knowledge’ ’’ about the

content of the medical records. Moreover, the state

contends that the jury was aware that the records had
not been admitted into evidence because it was present

when the state made the original motion. We agree with

the defendant, and conclude that this comment was

improper—albeit not as singularly egregious as the

comment identified in Maguire.

The record reveals the following additional relevant

facts and procedural history. The trial court declined

to admit the defendant’s medical records into evidence

on the ground that they were inadmissible under § 7-4

(b) of the Connecticut Code of Evidence because they

were not facts relied upon by Feuerstein in forming his

opinion. The prosecutor then asked Feuerstein:

‘‘[The Prosecutor]: I’m asking you as a health-care

professional, isn’t it a good thing to get records that are

very recent in time when trying to evaluate somebody’s

mental state?

‘‘[Feuerstein]: Yes.

‘‘[The Prosecutor]: Okay. And now, the records aren’t

allowed to come in, but having—

‘‘[Defense Counsel]: I object, Your Honor. Ask that

[it] be stricken.

‘‘The Court: The jury should disregard that comment.

‘‘[The Prosecutor]: Without talking to us about the

specifics of what’s in the records, are there items in

there that you would have considered when rendering

your opinion?’’18 (Emphasis added.)

We agree with the defendant that this comment, albeit

prefatory, raised the specter of a ‘‘stage whisper’’ about

materials contained in the medical records that the

prosecutor knows might have some bearing on the case,

but that the jury—for whatever reason—is not allowed

to see. We recently held similar comments to be

improper in State v. Maguire, supra, 310 Conn. 559,

wherein a prosecutor made a comment during an objection to the defendant’s cross-examination of a forensic

interviewer about inconsistencies in the victim’s statement, which referred to ‘‘ ‘the full interview, and that’s

not in evidence.’ ’’ We agreed with the defendant that

this remark ‘‘indicat[ed] that redacted portions of the

transcript of the forensic interview refuted defense

counsel’s assertion that [the interviewer] did not challenge the victim with respect to inconsistencies in the

victim’s claims against the defendant . . . .’’ Id., 558.

We observed that this comment, among other improprieties committed by the prosecutor, ‘‘conveyed to the

jury that the defendant or defense counsel was not

to be trusted. As this court previously has stated, the

prosecutor’s opinion carries with it the imprimatur of

the [state] and may induce the jury to trust the [state’s]

judgment rather than its own view of the evidence. . . .

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.’’ (Internal quotation marks omitted.)

Id., 562. Ultimately, on the record in Maguire, we concluded that this impropriety combined with others to

deprive the defendant of his right to a fair trial. See id.,

560–62. Accordingly, following Maguire, we conclude

that this comment was an impropriety that will require

us to determine whetherit violated the defendant’s right

to a fair trial.

2

Disregard of Hypothetical Questions Ruling

The defendant next argues that the prosecutor

improperly questioned Feuerstein about whether people kill each other over seemingly minor triggers like

$10 or parking spaces. See footnote 14 of this opinion.

Specifically, the defendant, in his reply brief, appears

to contend that these questions:(1) violated a trial court

order against hypothetical questions not based on evidence in the record or the defendant’s medical records;

and (2) were not properly phrased as hypotheticals. In

response, the state contends that, to the extent that the

prosecutor violated the trial court’s ruling concerning

the questioning of Feuerstein, those violations were the

inadvertent product of good faith attempts to formulate

meaningful questions in response to a confusing and

legally erroneous interpretation of § 7-4 (c) of the Connecticut Code of Evidence. Citing State v. King, 289

Conn. 496, 958 A.2d 731 (2008), the state observes that

the ‘‘distinction between proper and improper questioning is often a subtle one.’’ We agree with the state,

and conclude that, to the extent that the prosecutor

breached the trial court’s evidentiary ruling concerning

the use of hypothetical questions, his questioning did

not rise to the level of prosecutorial impropriety that

implicates the defendant’s due process rights.

The record reveals the following relevant facts and

procedural history. Following a chambers conference

and subsequent argument on the record, the trial court

addressed the use of ‘‘hypothetical questions asked on

cross-examination’’ and ruled that, ‘‘[w]hile on direct

examination, a hypothetical question needs to be based

on facts in evidence. A greater latitude may be submitted on cross-examination. Accordingly, subject to the

court’s discretion in the cross-examination of an expert,

any fact may be assumed in a hypothetical question to

test the skill, learning, or accuracy of the expert or to

ascertain the reasonableness . . . of the expert’s opinion. The citation is Floyd v. Fruit Industries, Inc., [144

Conn. 659, 666, 136 A.2d 918 (1957)].19 So the crossexamination of the expert does not have to include

facts that are . . . in evidence in general terms.

* * *

‘‘So again, with respect to the hypothetical questions,

as set out in the case law, the hypothetical question
because it’s cross-examination can’t have facts other

than those that are not . . . in evidence as part of the

hypothetical.’’ (Footnote added.)

Following an objection by the defendant, the trial

court later clarified that, under that ruling, the prosecutor was ‘‘not to . . . put into hypotheticals facts that

are either not in evidence or part of the medical record.

I heard nothing about killing someone for a spot—

parking—that is in any way related to this case. Do

you understand?’’

The record discloses that the atmosphere in the courtroom at that point may have been tense, insofar as

the trial judge deemed it necessary to admonish the

prosecutor about raising his voice in court, leading the

prosecutor to apologize and confirm the scope of the

clarified order.20 Nevertheless, we conclude that the

prosecutor’s questions, although phrased in apparent

violation of the court’s evidentiary ruling, did not rise

to the level of an impropriety that is grist for the due

process mill. The initial ruling that the trial court put

on the record was not clear. Until the trial court’s subsequent clarification emphasizing its restriction of hypotheticals to those rooted in facts either in evidence or

contained in the defendant’s medical records, that initial order contained somewhat confusing double negatives and, indeed, implicitly invited the use of extrarecord facts in hypotheticals—which would not contravene Floyd, which was the basis for the trial court’s

ruling. The fact that the prosecutor’s questions about

small amounts of money or other trivial matters, such

as parking spots, serving as a motive for killing led to

a sustained objection because they crossed the initially

hazy line drawn by the trial court does not raise those

questions to the level of prosecutorial impropriety. See

State v. Sherman, 38 Conn. App. 371, 386, 662 A.2d

767 (concluding that prosecutor’s questions ‘‘did not

directly undermine the court’s ruling,’’ despite fact that

trial court ‘‘sustain[ed] the defendant’s objection to the

questions, it did so on the theory that the questions

were similar to those meant to be precluded by the

motion in limine,’’ particularly because trial court gave

prompt curative instruction to jury), cert. denied, 235

Conn. 905, 665 A.2d 905 (1995).

Further, to the extent that the defendant attacks the

prosecutor’s failure to indicate specifically that his

questions were hypothetical in nature, we conclude that

this was an error of form that did not undermine a

ruling protecting against the admission of evidence that

the trial court had specifically identified as substantively unreliable or unduly prejudicial. Accordingly, we

conclude that these erroneously phrased questions did

not rise to the level of constitutional prosecutorial

impropriety.

3
Breach of Orders with Respect to Uncharged

Misconduct Evidence

The defendant next claims that the prosecutor

improperly attempted to impeach Feuerstein’s testimony with ‘‘several instances of misconduct [that] had

not been disclosed in response to the defendant’s pretrial pleading, and for which there was no basis in the

record.’’ The only misconductthatreceives any substantive briefing, however, is the defendant’s claim that

the prosecutor improperly introduced evidence of his

threat to stab someone 100 times with a knife, despite

a ruling to the contrary. In an abundance of caution,

and because they are intertwined, we also address the

defendant’s apparent challenge to cross-examination

questions that asked Feuerstein whether he was aware

of (1) the defendant’s psychiatric hospitalization

approximately one month before the homicide in this

case ‘‘for threatening to kill or because he thought he

was going to kill’’ O’Connor, and (2) an incident when

the defendant’s friends took a knife away from him

because they were afraid he was going to hurt O’Connor. The defendant posits that, based on an initial preclusive order regarding the 100 times threat, these

references were inappropriate because the prosecutor

‘‘had been warned well in advance that these references

were inadmissible.’’ The defendant also argues that the

state failed to comply with an order granting the defendant’s motion directing the state to disclose the

uncharged misconduct that it intended to use.

In response, the state argues that the trial court’s

initial preclusive ruling was limited to the state’s casein-chief, rather than for impeachment purposes. The

state also contends that the prosecutor’s use of this

uncharged misconduct evidence for impeachment purposes did not violate the terms of the court’s order

on the defendant’s motion requiring the disclosure of

uncharged misconduct evidence, which by way of its

citation to State v. Acquin, 34 Conn. Supp. 152, 153,

381 A.2d 239 (1977), extended only to uncharged misconduct utilized to prove guilt, rather than for impeachment purposes. Contending that this misconduct did

not become relevant until Feuerstein testified that the

defendant had ‘‘ ‘no significant history of violence,’ ’’

the state also argues that the late disclosure by the

defense of the voluminous medical records that had

been reviewed by Feuerstein led to confusion on the

part of the prosecutor about whether the knife incident

was included in those records, and thus, was germane

for cross-examination. We agree with the state, and

conclude that any ostensible failure to comply with

orders with respect to uncharged misconduct evidence

did not rise to the level of constitutional prosecutorial impropriety.

We begin by reviewing the trial court’s orders with

respect to uncharged misconduct evidence. The defen-
dant filed a pretrial motion on November 28, 2011, ‘‘to

require notice of uncharged misconduct evidence,’’

seeking that ‘‘the state be ordered to provide defense

counsel with a written statement listing the nature, date

and place of any and all criminal offenses or acts of

misconduct . . . .’’ (Citation omitted.) As legal authority for the motion, the defendant cited article first, § 8,

of the Connecticut constitution, Practice Book § 40-

12,21 and State v. Acquin, supra, 34 Conn. Supp. 152. On

December 14, 2011, the state filed a notice of uncharged

misconduct stating, inter alia, that it might seek to

admit: (1) ‘‘violent acts of the defendant . . . detailed’’

in the records disclosed by the defendant as relevant to

the defendant’s psychiatric defense; and (2) statements

made in the presence of Peden in which the defendant

‘‘threaten[ed] to stab someone ‘[100] times.’ ’’

When Peden testified during the state’s case-in-chief,

the prosecutor offered as uncharged misconduct evidence Peden’s observation, recorded in his statement

to the police, that, approximately one week before the

homicide in this case, the defendant had waved a large

knife around and said that: ‘‘ ‘I just [want to] stab someone [100] times.’ ’’ After some argument centered on

whetherthat conduct constituted a crime, the trial court

ruled that it would not permit the prosecutorto question

Peden about that incident because it was not ‘‘misconduct’’ subject to § 4-5 (b) of the Connecticut Code of

Evidence.

Subsequently, while cross-examining Feuerstein, the

prosecutor asked him, inter alia, whether he was aware

of (1) the defendant’s psychiatric hospitalization

approximately one month before the homicide in this

case ‘‘for threatening to kill or because he thought he

was going to kill’’ O’Connor, and (2)that the defendant’s

friends had to take a knife away from him because they

were afraid he was going to hurt O’Connor. See footnote

9 of this opinion. This line of questioning led to a multifaceted objection from the defendant.22

Having reviewed the parties’ briefs and the record,

we conclude that this claim is really a discovery dispute

that does not rise to the level of constitutional impropriety. First, there is no constitutional right to the disclosure of uncharged misconduct evidence, which is

inculpatory in nature. See, e.g., State v. Colon, 71 Conn.

App. 217, 241, 800 A.2d 1268, cert. denied, 261 Conn.

934, 806 A.2d 1067 (2002). Second, our review of the

record demonstrated that the state had indicated in its

disclosure that it would rely on episodes of misconduct

contained in the medical records reviewed by

Feuerstein, and the prosecutor’s belief that the episodes

at issue were reflected in those records. Further, given

the citation to State v. Acquin, supra, 34 Conn. Supp.

152, in the defendant’s motion for disclosure, the prosecutor’s argument that he was not required to disclose

materials beyond those used in the case-in-chief was
not frivolous or unreasonable. See id., 152–53 (noting

that motion at issue in Acquin sought disclosure of

uncharged misconduct evidence ‘‘other than those

charged in the present information and those offered

forimpeachment purposes, which the state will attempt

to prove at the trial’’). Finally, even after extensive

argument, and the denial of a motion for a mistrial that,

in part, was based on the defendant’s claims of untimely

disclosure of this evidence, the trial court did not sanction the state orindicate any displeasure with the disclosure provided. Instead, the trial court, focusing on its

order that the questioning of Feuerstein be conducted

through the use of hypotheticals, instructed the jury

that the questions were not evidence and that the jury

had ‘‘heard no evidence that the defendant threatened

to kill or stab [O’Connor].’’ Accordingly, given the lack

of clarity in the record on this point, we conclude that

the defendant has failed to establish that any breach

by the prosecutor with respect to the disclosure of

uncharged misconduct rose to the level of constitutional impropriety.

C

Closing Argument Impropriety

Finally, the defendant challenges certain aspects of

the state’s closing and rebuttal arguments. In particular,

the defendant challenges the prosecutor’s arguments

that: (1) ‘‘common sense tells you that the version of

events that [the defendant] gives just doesn’t make

sense. There’s nothing corroborating his statement that

there were unwanted sexual advances’’; and (2) the

‘‘defendant in the beginning tried to immediately set up

a motive or an excuse as to why it was that he committed this crime. What he says does not make sense.’’ The

defendant argues that these comments were ‘‘improper

rhetoric [that] was a direct pick up from the prosecutor’s sarcasm, incredulity, and disdain during crossexamination’’ that amounted to an ‘‘unfair [appeal] to

emotion and prejudice.’’23 (Internal quotation marks

omitted.) In response, the state relies on State v. Long,

293 Conn. 31, 975 A.2d 660 (2009), and contends that

these statements were not improper because a prosecutor may argue credibility and appeal to the jurors’ common sense during summations, as long as the arguments

are rooted in the evidence in the record. We agree with

the state, and conclude that the prosecutor did not

commit impropriety during closing arguments.

‘‘The parameters of the term zealous advocacy are

. . . well settled. . . . [A] prosecutor may not express

his [or her] own opinion, directly or indirectly, as to

the credibility of the witnesses. . . . 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. . . . Put another way, the prosecutor’s opinion carries with it the imprimatur of the [state] and may
induce the jury to trust the [state’s] judgment rather

than its own view of the evidence. . . . 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. . . . However, [i]t is not improper for the

prosecutor to comment upon the evidence presented

at trial and to argue the inferences that the jurors might

draw therefrom . . . . We 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.’’ (Citation omitted; internal quotation marks omitted.) State v. Ciullo, 314 Conn.

28, 40–41, 100 A.3d 779 (2014).

Further, it ‘‘is well established that a prosecutor may

argue about the credibility of witnesses, as long as her

assertions are based on evidence presented at trial and

reasonable inferences that jurors might draw therefrom. . . . Moreover, [i]n deciding cases . . . [j]urors

are not expected to lay aside matters of common knowledge or their own observations and experiences, but

rather, to apply them to the facts as presented to arrive

at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel to appeal to [the

jurors’] common sense in closing remarks. . . . Our

jurisprudence permits these statements from the prosecution, if properly presented . . . .’’ (Citation omitted;

internal quotation marks omitted.) Id., 45–46; see also,

e.g., State v. Long, supra, 293 Conn. 41–42. The prosecutor may also make these arguments with respect to the

credibility of statements by the defendant himself, so

long as they are rooted in the evidence at trial. See,

e.g., State v. Medrano, 308 Conn. 604, 616–19, 65 A.3d

503 (2013) (prosecutor properly argued defendant was

not credible because of evidence that he had larceny

conviction and had lied on job application, and had

motive to lie); see also State v. Smalls, 78 Conn. App.

535, 542–43, 827 A.2d 784 (prosecutor may properly

comment on defendant’s ‘‘voluntary pretrial statements

if the defendant relies on those statements for a

defense’’ and comment does not burden defendant’s

right not to testify), cert. denied, 266 Conn. 931, 837

A.2d 806 (2003).

Finally, in evaluating claims of impropriety during

summation, we recognize that ‘‘the privilege of counsel

in addressing the jury should not be too closely narrowed or unduly hampered . . . .’’ (Internal quotation

marks omitted.) State v. Albino, supra, 312 Conn. 772.

‘‘When making closing arguments to the jury . . .

[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. . . . Thus, as the state’s advocate, a 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.’’ (Internal quotation marks omitted.) State

v. Medrano, supra, 308 Conn. 611.

Read in context, we conclude that the prosecutor’s

arguments that the defendant’s statement and theory

did not ‘‘make sense’’ were not improper. Specifically,

the prosecutor cited ample evidence from the trial

record to establish that the defendant was not homophobic—let alone violently so. The prosecutor, therefore, properly argued that the defendant’s extreme

emotional disturbance defense, as rooted in deep homophobia, ‘‘did not make sense’’ given the evidence in the

record ‘‘that he acted exactly the opposite of someone

who would be homophobic,’’ by maintaining friendships

with openly gay men and by not reacting negatively to

a same sex sexual encounter that he had at a party.

See footnote 31 of this opinion. Accordingly, we conclude that the challenged remarks during closing argument were not prosecutorial impropriety.

D

Williams Due Process Analysis

Having identified two instances of impropriety during

cross-examination, namely, the prosecutor’s description of the defendant as a ‘‘mean and nasty person who

was looking to kill somebody,’’ and his reference to the

records that the trial court had declined to admit; see

parts I A 1 and I B 1 of this opinion; we now determine

whether they violated the defendant’s right to a fair

trial. ‘‘[O]ur determination of whether any improper

conduct by the [prosecutor] violated the defendant’s

fair trial rights is predicated on the factors set forth

in State v. Williams, supra, 204 Conn. 540, with due

consideration of whether that [impropriety] was

objected to at trial. . . . These factors include: the

extent to which the [impropriety] was invited by

defense conduct or argument . . . the severity of the

[impropriety] . . . the frequency of the [impropriety]

. . . the centrality of the impropriety to the critical

issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s

case. . . .

‘‘We recently clarified that when a defendantraises 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. Ciullo, supra, 314 Conn. 57–58.

Reviewing the six Williams factors, we agree with
the state and conclude thatthe two identified improprieties did not deprive the defendant of his right to a fair

trial. We acknowledge that the defendant did nothing

to invite them, and, in fact, thought both significant

enough to warrant both an objection when made and

later serve as a partial basis for a mistrial motion. See

also part II of this opinion. Nevertheless, these two

improprieties were confined to the cross-examination

of Feuerstein and, therefore, were not frequent. Second,

they also were not particularly severe, especially when

contrasted with the more vituperative language considered in some of our other cases; see footnote 10 of this

opinion; and the more focused stage whisper at issue

in State v. Maguire, supra, 310 Conn. 558–60, wherein

the prosecutor directly highlighted the existence of

redacted portions of records while questioning an

expert about inconsistencies in those records that had

been admitted into evidence. Third, the improprieties

were not particularly central to the state’s case against

the defendant or its attempt to refute the special

defense—the prosecutor did not address Feuerstein’s

testimony at all during closing or rebuttal arguments.

Fourth, the state’s case against the defendant as

explained during summations—including with regard

to responding to the defendant’s extreme emotional

disturbance defense—was very strong and rooted

largely in the defendant’s own statement and the gravity

and severity of the victim’s injuries. Finally, to the

extent there was any harm, it was mitigated by the trial

court’s prompt curative instruction directing the jury

to disregard the improper questions, which we presume

the jury followed. See, e.g., State v. Payne, supra, 303

Conn. 567–68; State v. Warholic, supra, 278 Conn. 404.

Accordingly, we conclude that these two isolated

instances of prosecutorial impropriety did not deprive

the defendant of a fair trial and, therefore, do not warrant reversal of this conviction.24

II

MISTRIAL MOTIONS

We next address the defendant’s claim that the trial

court improperly denied his two motions for a mistrial

based on the improper presentation of uncharged misconduct evidence. The defendant contends that the

trial court should have granted his motions for a

mistrial upon: (1) a spontaneous statement by Richard

Innaimo, a Waterbury police detective, that he had utilized ‘‘a booking photo[graph] with a physical description from a previous arrest’’ to aid in apprehending the

defendant; and (2) the prosecutor’s use of assertions

of fact, rather than hypothetical questions, to crossexamine Feuerstein about prior misconduct by the

defendant such as threats to kill O’Connor and his

friends taking a knife away from him.25 In response,

the state argues that the trial court did not abuse its

discretion in determining that striking the challenged
evidence and issuing a curative instruction was an adequate remedy short of declaring a mistrial. We agree

with the state, and conclude that the trial court did not

abuse its discretion by denying the defendant’s motions

for a mistrial.

The record reveals the following additional relevant

facts and procedural history.26 Innaimo testified that he

had been assigned to assist with the apprehension of

the defendant by the Waterbury police. The prosecutor

asked Innaimo whether he had ‘‘look[ed] at any type

of photograph orlearn[ed] any other biological information about’’ the defendant prior to going out to look for

him. Innaimo then responded that he ‘‘had a booking

photo[graph] with a physical description from a prior

arrest.’’ After Innaimo testified about the events concerning the apprehension of the defendant, the defendant asked to be heard outside the presence of the jury,

and moved for a mistrial, arguing that the ‘‘inquiry and

response in regards to the identification of the defendant through a booking photo[graph] from a previous

arrest is completely inappropriate.’’ The defendant

stated that he had not objected at the time because

he did not want to draw more attention to Innaimo’s

comment. In response, the prosecutor argued that she

had not anticipated Innaimo’s answer, but contended

that prejudice would be mitigated by testimony anticipated from Feuerstein regarding the defendant’s prior

larceny arrest. After additional discussion, the trial

court denied the defendant’s motion for a mistrial,

deeming it a ‘‘severe sanction’’ that was not warranted

in light of the availability of a curative instruction, to

be given both at that time and reiterated later during

the final charge.27

Subsequently, an evidentiary dispute arose about the

potential introduction of evidence of uncharged misconduct during the cross-examination of Feuerstein via

questions phrased as assertions of fact, rather than as

hypotheticals. See part I B 2 of this opinion. Defense

counsel renewed his previous motion for a mistrial arising from Innaimo’s reference to a booking photograph,

and stated, ‘‘at this point, the court is not just looking

at that one isolated statement,’’ arguing that ‘‘it’s the

cumulative nature of a variety of things that have

occurred that, in my opinion, are beyond any instruction

the court can give’’ with respect to preserving the defendant’s right to due process and fundamental fairness.

The defendant again challenged the prosecutor’s ‘‘mean

and nasty person’’ question; see part IA1 ofthis opinion;

and the phrasing of questions using assertions of fact

rather than hypotheticals, in particular the questions

about the defendant’s threats toward O’Connor, and the

fact that his friends had to take his knife away. In

response, the prosecutor argued that the ‘‘mean and

nasty person’’ comment was an alternative theory for

the homicide, and that the evidence of the defendant’s

threatening behavior was rooted in his medical records.
After ruling on the hypothetical phrasing, the trial court

denied the mistrial motion, stating that the jury would

be instructed that the prosecutor’s statements were not

evidence, and those references would be stricken from

the record. The trial court then instructed the jury

accordingly.28

‘‘The standard for review of an action upon a motion

for a mistrial is well established. While the remedy of

a mistrial is permitted under the rules of practice, it is

not favored. [A] mistrial should be granted only as a

result of some occurrence upon the trial of such a

character that it is apparent to the court that because

of it a party cannot have a fair trial . . . and the whole

proceedings are vitiated. . . . If curative action can

obviate the prejudice, the drastic remedy of a mistrial

should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge

is the arbiter of the many circumstances which may

arise during the trial in which his function is to assure

a fair and just outcome. . . . The trial court is better

positioned than we are to evaluate in the first instance

whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that

prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.’’

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

supra, 280 Conn. 702. Further, in ‘‘reviewing a claim of

abuse of discretion, we have stated that [d]iscretion

means a legal discretion, to be exercised in conformity

with the spirit of the law and in a manner to subserve

and not to impede or defeat the ends of substantial

justice. . . . In general, abuse of discretion exists

when a court could have chosen different alternatives

but has decided the matter so arbitrarily as to vitiate

logic, or has decided it based on improper or irrelevant

factors. . . . Therefore, [i]n those cases in which an

abuse of discretion is manifest or where injustice

appears to have been done, reversal is required.’’ (Internal quotation marks omitted.) Id., 703.

As previously discussed in part I B 2 of this opinion,

we conclude that the prosecutor’s breach of the trial

court’s evidentiary ruling by questioning Feuerstein

using assertions of fact, rather than hypotheticals, to

describe certain instances of prior misconduct, did not

implicate the defendant’s due process rights. We also

conclude that the brief reference to the booking photograph, while unfortunate, was not excessively prejudicial because neither the prosecutor nor Innaimo dwelt

on that point, and there was mention of the crime that

formed the basis for the arrest. The trial court, therefore, reasonably could have concluded that any prejudice to the defendant, including that created by the

‘‘mean and nasty person’’ comment, would be addressed

adequately by a curative instruction. Accordingly, we

conclude that the trial court did not abuse its discretion

by denying the defendant’s various motions for a
mistrial.

III

SUFFICIENCY OF THE EVIDENCE

We next address the defendant’s claim that there

is insufficient evidence to support his conviction for

kidnapping in the second degree, which serves as the

predicate for his felony murder conviction. Relying on,

inter alia, State v. Salamon, supra, 287 Conn. 509, and

State v. Ward, 306 Conn. 718, 51 A.3d 970 (2012), the

defendant contends that there is insufficient evidence

to establish beyond a reasonable doubt that there was

confinement or movement of the victim beyond that

incidental to the commission of another crime, in this

case, murder.29 In response, the state, citing State v.

Ward, supra, 718, and State v. Miranda, 145 Conn. App.

494, 75 A.3d 742, cert. granted on other grounds, 310

Conn. 942, 79 A.3d 894, cert. denied, 310 Conn. 942, 79

A.3d 893 (2013), contends that the kidnapping conviction is supported by the defendant’s admission that he

wanted to torture the victim, as evinced by the length

of confinement and his acts of moving the victim to

numerous locations within the factory before ultimately

killing him. We agree with the state, and conclude that

the defendant’s kidnapping conviction is supported by

sufficient evidence.

‘‘In reviewing a sufficiency of the evidence claim, we

apply a two-part test. 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.’’ (Internal quotation marks

omitted.) State v. Gonzalez, 311 Conn. 408, 419, 87 A.3d

1101 (2014); see also id., 419–20 (setting forth more

detailed recitation of standard).

‘‘[I]n State v. Salamon, supra, 287 Conn. 542, this

court reconsidered its prior interpretation and construction of the kidnapping statutes and concluded that

[o]ur legislature . . . intended to exclude from the

scope of the more serious crime of kidnapping and its

accompanying severe penalties those confinements or

movements of a victim that are merely incidental to

and necessary for the commission of another crime

against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant

must intend to prevent the victim’s liberation for a

longer period of time or to a greater degree than that

which is necessary to commit the other crime.

‘‘Although our holding in Salamon constituted a significant change with respect to our interpretation of the

kidnapping statutes, we emphasized that [o]ur holding

does not represent a complete refutation of the principles established by our prior kidnapping jurisprudence.
First, in order to establish a kidnapping, the state is

not required to establish any minimum period of confinement or degree of movement. When that confinement or movement is merely incidental to the

commission of another crime, however, the confinement or movement must have exceeded that which was

necessary to commit the other crime. [T]he guiding

principle is whether the [confinement or movement]

was so much the part of another substantive crime that

the substantive crime could not have been committed

without such acts . . . . In other words, the test . . .

to determine whether[the] confinements or movements

involved [were] such that kidnapping may also be

charged and prosecuted when an offense separate from

kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to

the accompanying felony or whether it was significant

enough, in and of itself, to warrant independent prosecution.’’ (Internal quotation marks omitted.) State v.

Ward, supra, 306 Conn. 731–32; see also State v. Salamon, supra, 287 Conn. 547–48 (describing factors jury

should consider in determining whether ‘‘restraint was

not merely incidental to the commission of some other,

separate crime’’ [emphasis omitted]).

Based upon the facts in the record and the reasonable

inferences that they support, we conclude that sufficient evidence underlies the defendant’s conviction of

second degree kidnapping. Consistent with the defendant’s desire that the victim ‘‘suffer and be tortured,’’

there was sufficient evidence under which the jury

could have found beyond a reasonable doubt that the

defendant’s movement and confinement of the victim

was not merely incidental to the crime of murder, insofar as he engaged in conduct beyond that necessary to

hold the victim down and stab him to death. Specifically,

in a protracted altercation, the defendant prevented

the victim’s escape from the attack and forced him at

knifepoint to move among the various floors of the

factory building before they ended up on the third floor,

where the defendant forced the victim through the

larger hole in the floor, beat him with a broken fluorescent light tube, and stabbed him to death. The nature

and length of this encounter across multiple locations

in the factory supports the jury’s verdict convicting the

defendant of second degree kidnapping. See State v.

Ward, supra, 306 Conn. 736–39 (sufficient evidence of

kidnapping when defendant dragged victim at knifepoint from kitchen to bedroom where he moved her

from bed to floor for sexual assault because that act

made victim’s ‘‘possibility of escape even more remote,’’

and sexual assault was brief part of entire fifteen minute

encounter); State v. Salamon, supra, 287 Conn. 549–50

(defendant not entitled to acquittal of kidnapping

charge when he subdued victim and forcibly held her

down for at least five minutes in addition to acts of

assaulting her by striking her and forcing his fingers
into her mouth); State v. Miranda, supra, 145 Conn.

App. 513 (sufficient evidence of kidnapping when victim

was moved from second floor to first floor of apartment

where murder took place, with victim’s bruises and

lacerations supporting inference that ‘‘the defendant,

before committing the murder, subjected [the victim]

to a period of physical abuse, which required additional

confinement’’). Accordingly, we conclude that the jury’s

verdict that the defendant committed second degree

kidnapping was supported by sufficient evidence.

IV

PRECLUSION OF DEFENSE WITNESSES

The defendant’s final claim is that the trial court

improperly barred the testimony of two witnesses who

would have corroborated aspects of his extreme emotional disturbance defense, specifically: (1) Christopher

Veader, the defendant’s brother, who would have testified about child sexual abuse in their family; and (2)

Rene Ingram, who would have testified to a same sex

sexual encounter with the victim. The defendant contends that the trial court’s order: (1) was an improper

grant of an oral motion in limine in violation of Practice

Book § 42-15;30 and (2) ‘‘emasculated the defendant’s

defense and his constitutional rights’’ by barring ‘‘vital

corroborative testimony . . . .’’ In response, the state

argues, inter alia, that: (1) the defendant’s § 42-15 claim

is not preserved; (2) his constitutional claim is inadequately briefed; and (3) the trial court reasonably could

have barred the testimony of both witnesses as irrelevant or cumulative. We agree with the state that the

defendant’s evidentiary claims are notreviewable, inadequately briefed, or otherwise lack merit.

The record reveals the following additional relevant

facts and procedural history. During trial, the defendant

advised the trial court that the anticipated testimony

of Veader and Ingram presented issues to be resolved

outside the presence of the jury. The defendant proffered Veader to testify that he had been sexually abused

by their stepfather in a place and manner similar to

that endured by the defendant, and was aware that the

stepfather had abused the defendant as well. The state

objected to Veader’s testimony as hearsay because he

had not witnessed the molestation of the defendant, as

irrelevant given that the defendant did not personally

see his abuse as contributing to the homicide, and as

cumulative of the testimony of Feuerstein and O’Connor. The defendant argued in response that he would

not elicit hearsay testimony from Veader and that his

sexual abuse was ‘‘reasonably part of what [Feuerstein]

considered.’’ After Veader testified in an offer of proof,

the trial court excluded Veader’s testimony as both

irrelevant and hearsay not subject to the residual exception; see Conn. Code Evid. § 8-9; because it was neither

necessary nor supported by ‘‘equivalent guarantees of

trustworthiness . . . .’’
The defendant proffered Ingram to testify about a

same sex sexual encounter with the victim after a party

in 1991, eighteen years prior to the victim’s death. The

defendant argued that Ingram’s testimony would establish that the victim was gay and had solicited sexual

acts, thus supporting the theory of his defense. After

Ingram testified in an offer of proof, the trial court

excluded that testimony, concluding that the incident

was ‘‘too remote in time’’ and ‘‘could lead to confusion

on the part of the jury.’’

The defendant’s claims arising from the exclusion of

the testimony of Veader and Ingram warrant only brief

discussion. First, we agree with the state that the defendant’s claim that the trial court improperly granted what

was in essence an oral motion in limine in violation of

Practice Book § 42-15, which requires such motions to

be in writing, was not raised before the trial court.

Further, the defendant has not supplied analysis in his

brief indicating that this specific claimed lapse in the

rules of practice requires reversal under the plain error

doctrine; see Practice Book § 60-5; or, put differently,

‘‘is such an obvious error that it affects the fairness

and integrity of and public confidence in the judicial

proceedings.’’ (Internal quotation marks omitted.) State

v. Myers, 290 Conn. 278, 291, 963 A.2d 11 (2009); see

also id., 290 (‘‘[a] trial court’s failure to comply with a

rule of criminal procedure, without more, is insufficient

to require reversal for plain error’’). Accordingly, we

decline to review this claim.

Second, to the extent the defendant’s brief addresses

the trial court’s evidentiary rulings, it is largely inadequate. Although the defendant cites and quotes numerous authorities on the topics of relevance, hearsay, and

the residual exception of § 8-9 of the Connecticut Code

of Evidence in an abstract manner, he does not specifically analyze the trial court’s ruling that Veader’s testimony was inadmissible hearsay not subject to the

residual exception by applying law to fact. ‘‘Analysis,

rather than mere abstract assertion, is required in order

to avoid abandoning an issue by failure to brief the

issue properly.’’ (Internal quotation marks omitted.)

Connecticut Light & PowerCo. v. Dept. of Public Utility

Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); see

also, e.g., Hartford/Windsor Healthcare Properties,

LLC v. Hartford, 298 Conn. 191, 194 n.4, 3 A.3d 56 (2010)

(‘‘[b]ecause the plaintiffs do not cite any authority or

develop their claim with analysis, we conclude that the

claim is inadequately briefed’’). We therefore will not

address the defendant’s claim to the extent it poses an

evidentiary challenge to the trial court’s decision to

exclude Veader’s testimony.

Insofar as the defendant’s brief adequately addresses

the trial court’s determination that Ingram’s testimony

was irrelevant, we disagree with his arguments. ‘‘[R]elevant evidence is evidence that has a logical tendency
to aid the trier in the determination of an issue. . . .

All that is required is that the evidence tend to support

a relevant fact even to a slight degree, so long as it is

not prejudicial or merely cumulative. . . . The trial

court has wide discretion to determine the relevancy

of evidence and [e]very reasonable presumption should

be made in favor of the correctness of the court’s ruling

in determining whether there has been an abuse of

discretion.’’ (Internal quotation marks omitted.) State

v. Kalil, 314 Conn. 529, 540–41, 107 A.3d 343 (2014).

We agree with the state that the trial court did not abuse

its discretion in determining that Ingram’s testimony

about a single same sex sexual encounter eighteen years

prior to the homicide was irrelevant, particularly when

the state did not purport to challenge the defendant’s

assertion that the victim was homosexual.31 As the state

aptly observes, ‘‘the victim’s mere status as a homosexual is no more probative of whether he is likely to have

engaged in nonconsensual sexual acts with another person than would a defendant’s mere status as a heterosexual be probative of such a tendency.’’ Accordingly,

we conclude that the trial court did not abuse its discretion in determining that Ingram’s proffered testimony

was irrelevant.

Finally, because the defendant has failed to establish

that these evidentiary rulings by the trial court on the

basis of hearsay and relevance were improper, he cannot establish that they deprived him of his sixth amendmentrightto present a defense, which is an unpreserved

claim that he raises pursuant to State v. Golding, 213

Conn. 233, 239–40, 567 A.2d 823 (1989). ‘‘The federal

constitution require[s] that criminal defendants be

afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . .

includes the right to offer the testimony of witnesses,

and to compel their attendance, if necessary, [and] is

in plain terms the right to present a defense, the right

to present the defendant’s version of the facts as well

as the prosecution’s to the jury so that it may decide

where the truth lies. . . .

‘‘A defendant is, however, bound by the rules of

evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted

to present every piece of evidence he wishes. . . .

Thus, our law is clear that a defendant may introduce

only relevant evidence, and, if the proffered evidence is

not relevant, its exclusion is proper and the defendant’s

right is not violated.’’ (Internal quotation marks omitted.) State v. Tutson, 278 Conn. 715, 748, 899 A.2d 598

(2006). Accordingly, because the defendant has failed

to establish that the trial court improperly excluded the

testimony of Veader and Ingram, he similarly cannot

establish that the exclusion violated his right to present

a defense, and his claim fails under the third prong of
Golding. See, e.g., State v. Crespo, 303 Conn. 589, 614,

35 A.3d 243 (2012); State v. Davis, 298 Conn. 1, 10, 1

A.3d 76 (2010); State v. Tutson, supra, 750–51.

The judgment is affirmed.

In this opinion ROGERS, C. J., and PALMER,

ZARELLA, McDONALD and VERTEFEUILLE, Js., concurred.

1 The defendant appeals directly to this court pursuant to General Statutes

§ 51-199 (b) (3).

2 We note that although § 53a-54a was amended in 2012; see Public Acts

2012, No. 12-5, § 7; that amendment has no bearing on the merits of this

appeal. In the interest of simplicity, we refer to the current revision of

the statute.

3 Wayne Carver, the state’s chief medical examiner, determined that the

multiple stab wounds had injured major blood vessels and organs, including

the heart, lungs, and liver, causing the victim’s death.

4 Feuerstein based his conclusion on information derived from three meetings with the defendant, a conversation with a family member of the defendant, and the review of numerous documents, including medical records

and the court and police files in this case. Feuerstein testified that the nature

of the victim’s multiple stab wounds, along with the defendant’s attempts

to calm himself down by smoking marijuana prior to the attack, indicated

that the attack was ‘‘the outcome of an extreme release of emotion’’ beyond

a simple desire to kill the victim. Feuerstein testified that the defendant

had a ‘‘significant history of violence’’ and psychiatric hospitalizations as

an adolescent, although there was no evidence that he ‘‘would be capable

of this . . . level of violence.’’ Feuerstein also testified that the defendant

had been the victim of sexual abuse as a child by his stepfather. Feuerstein

then related the defendant’s increasing discomfort with the victim in the

days and weeks leading up to the attack, although he acknowledged that

the defendant had not previously acted violently toward gay people.

5 Following this court’s decision in State v. Lewis, 245 Conn. 779, 819,

717 A.2d 1140 (1998), the trial court merged the defendant’s convictions of

felony murder and murder, and vacated the defendant’s sentence on the

felony murder count.

6 The defendant’s trial was prosecuted by two senior assistant state’s

attorneys assigned to the Waterbury judicial district, namely, Terrence Mariani and Amy Sedensky. The defendant’s prosecutorial impropriety claims

arising from the questioning of Feuerstein solely concern the actions of

Attorney Mariani, while his claims arising from the summation and rebuttal

arguments solely challenge the actions of Attorney Sedensky. For the sake

of simplicity, all references to the prosecutor are phrased in the singular.

7 We note that the defendant’s briefing of the prosecutorial impropriety

issue is both confusing and incomplete. In particular, the defendant’s principal brief does not contain legal analysis corresponding to each ofthe prosecutorial questions or remarks identified in its statement of additional relevant

facts. To the extent that this opinion does not address any particular claimed

impropriety, it is because we consider those claims to be inadequately

briefed. We also note, however, that the defendant has provided brief legal

analysis with respect to some of those additional improprieties in his reply

brief. Notwithstanding our general refusal to address claims that are briefed

in this manner; see, e.g., State v. Devalda, 306 Conn. 494, 519 n.26, 50 A.3d

882 (2012); we exercise our discretion to review them on their merits in

the present case because the state has responded to those claimed improprieties and, therefore, has not been prejudiced by this manner of briefing.

8

‘‘Once prosecutorial impropriety has been alleged . . . it is unnecessary

for a defendant to seek to prevail under State v. Golding, 213 Conn. 233,

239–40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to

review the defendant’s claim under Golding.’’ (Internal quotation marks

omitted.) State v. Wilson, 308 Conn. 412, 434 n.7, 64 A.3d 91 (2013).

9

In context, after discussing the defendant’s hospitalization in 2003, when

he was approximately fifteen years old, the prosecutor ‘‘jump[ed] forward

to’’ June, 2009, and asked Feuerstein a lengthy series of questions about

his awareness of the defendant’s psychiatric history leading up to the time

of the attack on the victim, including about whether the defendant had been

candid about certain hospital visits occasioned by threatening behavior. The

prosecutor asked Feuerstein, inter alia, whether the defendant’s failure to

discuss those instances created ‘‘some concern about the reliability of the
information that he conveyed to you.’’ The following colloquy then occurred:

‘‘[Feuerstein]: I always felt and always feel in cases like this that I don’t

always have 100 percent of the information. I knew that the information I

got from him wouldn’t be 100 percent reliable. I feel that compared to other

similar situations, his story meshed very consistently with the other versions

I had. If I had asked him about emergency room visits, he may have told

me, but I didn’t—and I don’t have a recording of my session with him, so

I can’t explicitly say.

‘‘[The Prosecutor]: Would . . . your impressions of him based on your

interviews . . . change in any significant way if you knew that just weeks

before this homicide his friends had to take the knife away from him so

that he didn’t go and stab his girlfriend?

‘‘[Feuerstein]: Is the question would I be surprised?

‘‘[The Prosecutor]: No, would that [a]ffect your impression of him based

upon your interviews? No, it seems to me—

‘‘[Feuerstein]: Well, it would have . . . made me think about possible

underlying psychiatric diagnoses. It would be inconsistent with him wanting

to kill this person. But I guess, generally speaking, he has no history of

violence. So . . . it’s not irrelevant is what I’m saying, but it wouldn’t change

my impression.

‘‘[The Prosecutor]: Would it be a fact that you would have wanted to

know about before you came in here and testified about what may or may not

have been going through his mind back around the time this was happening?

‘‘[Feuerstein]: Yeah, I would have explored it in more detail.

‘‘[The Prosecutor]: Sure. Because, I mean, maybe he’s just a mean and

nasty person who was looking to kill somebody.

‘‘[Defense Counsel]: Objection, Your Honor.

‘‘The Court: Sustained. The jury should disregard the question.

‘‘[The Prosecutor]: Would you be interested in the fact that he was making

threats to kill other people around the time that he killed [the victim]?

Wouldn’t that inform your opinion about what was going through his head

at the time of this particular murder?

‘‘[Feuerstein]: It would have been data that would have been useful and

been worth exploring, yes.’’ (Emphasis added.)

10 The defendant responds to the state’s argument contextualizing the

‘‘mean and nasty’’remark by asking whether‘‘there [is] a way to call someone

‘mean and nasty’ as a compliment?’’ It bears noting that the phrase ‘‘mean

and nasty’’ is relatively tame in the grand scheme of the invective considered

in our voluminous prosecutorial impropriety jurisprudence. See, e.g., State

v. Williams, supra, 204 Conn. 546–47 (prosecutor called defendant, inter

alia, ‘‘ ‘child-beater,’ ‘baby-beater’ and ‘infant-thrasher,’ ’’ as well as ‘‘ ‘a liar,’

‘drunken drug-user, convicted felon, child beater,’ ’’ and referred to principal

defense witness as ‘‘ ‘liar,’ ‘stupid,’ an ‘evil woman,’ and an ‘evil, terrible

woman’ ’’); State v. Couture, 194 Conn. 530, 560–61, 482 A.2d 300 (1984)

(prosecutor described defendants as ‘‘ ‘murderous fiends,’ ‘rats,’ ‘utterly

merciless killers’ and ‘inhumane, unfeeling and reprehensible creatures’ ’’),

cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Nevertheless, the relative severity of the improper comment is a factor to be considered in the ultimate due process analysis. See part I D of this opinion.

11 Thus, we disagree with the defendant’s reliance on State v. Heredia,

253 Conn. 543, 565, 754 A.2d 114 (2000), and State v. Warholic, supra, 278

Conn. 354, wherein this court deemed the challenged prosecutorial remarks

to be improper emotional appeals intended to invoke the fears of the jury.

See State v. Warholic, supra, 374–75 (The prosecutor stated: ‘‘ ‘The evidence

proves that [the defendant] is the child molester that he’s accused of being.

They’re out there. They’re among us.’ ’’ [Emphasis omitted.]); State v. Heredia, supra, 558 (prosecutor challenged defendant’s attempts to appear naive

and harmless in court by saying that: ‘‘ ‘[i]f I loaded that gun and shut out

the lights in this courtroom and put it in his hand, I think everybody would

have a very different perception of how dangerous he is’ ’’ [emphasis omitted]). Heredia and Warholic are inapposite because the defendant’s identity

as the perpetrator of the offenses charged was at issue therein; in the present

case, it was uncontested that the defendant committed the homicidal act

at issue.

12 We respectfully disagree with the concurring justice’s opinion that the

‘‘mean and nasty person’’ comment ‘‘was not gratuitously pejorative, but

rather an inartful and poorly crafted expression within a valid line of questioning,’’ and that ‘‘the prosecutor’s otherwise entirely proper and on point

comment is improper simply due to words he happened to employ while

under the pressure of cross-examining a witness.’’ Although we recognize

that the process of an attorney, or judge, thinking quickly on their feet at

trial might lead to remarks that seem regrettable on later review in a printed
transcript, and that we do not want to supplant zealous advocacy with, as

the concurring justice calls it, ‘‘overcautious and ineffective advocacy,’’ we

nevertheless emphasize that the prosecutor has a greater systemic and

official responsibility to seek impartial justice than does an ordinary advocate, and that whether an impropriety is intentional or accidental does not

affect whether it deprived a defendant of a fair trial. See, e.g., State v. Angel

T., 292 Conn. 262, 282 n.14, 973 A.2d 1207 (2009) (‘‘[t]he touchstone of due

process analysis in cases of alleged prosecutorial misconduct is the fairness

of the trial, and not the culpability of the prosecutor’’ [internal quotation

marks omitted]).

Further, in a comment on the apparent proliferation of prosecutorial

impropriety claims in criminal appeals; see, e.g., State v. Jarrett, 82 Conn.

App. 489, 501, 845 A.2d 476 (‘‘[p]rosecutorial misconduct has become the

criminal equivalent of the [Connecticut Unfair Trade Practices Act] claim’’

[footnote omitted]), cert. denied, 269 Conn. 911, 852 A.2d 741 (2004); the

concurring justice expresses her concern that ‘‘lightly labeling minor prosecutorial missteps as improper also undermines the seriousness of claims

brought by those defendants that have experienced egregious violations of

their constitutional rights due to improper prosecutorial behavior.’’ To this

end, the concurring justice also observes that treating apparently minor

missteps as improper ‘‘serves to diminish the gravity with which an appellate

court should evaluate severe prosecutorial improprieties and cheapens

claims of seriously prejudicial due process violations.’’ We respectfully disagree. The well settled principles under which we consider prosecutorial

impropriety claims do not treat all claims of impropriety as equal insofar

as they accommodate both for the severity of the impropriety and its relative

effect in any given case in determining whether reversal is required. See,

e.g., State v. Ciullo, 314 Conn. 28, 57–58, 100 A.3d 779 (2014); see also

part I D of this opinion. Whether, given these principles, a prosecutorial

impropriety claim is an effective strategic use of limited briefing space in

a given criminal appeal is a question that is the prerogative of appellate

defense counsel, rather than this court, to answer.

13 The full context of this exchange between the prosecutor and Feuerstein

was as follows:

‘‘Q. . . . You would agree with me, wouldn’t you, that the substance of

your testimony here is not really based on any hard science. Fair enough

to say?

‘‘A. It depends on what you mean by ‘hard science.’

‘‘Q. Did you have any data that supports your conclusions?

‘‘A. Well, clinical evaluations rely on a lot of data.

‘‘Q. Okay. Well, let me ask this: Did you administer any science—any test

to him, any personality tests?

‘‘A. No.

‘‘Q. And those are part of the psychiatric arsenal, so to speak, like the

[Minnesota Multiphasic Personality Inventory], Rorschach tests—there’s a

whole battery of tests that psychiatrists use to evaluate people. Is that true?

‘‘A. If they’re relevant, yes.

‘‘Q. Okay. Were any of those tests given to him?

‘‘A. No.’’ (Emphasis added.)

14 This question arose in the following context:

‘‘[The Prosecutor]: Sure. Now, I want to ask you just a little bit about

didn’t [the defendant] indicate in his statement that there was a fight between

the two of them over money?

‘‘[Feuerstein]: I really thought the fight was about not purchasing beer,

but I . . . guess it could be interpreted as a fight over money.

‘‘[The Prosecutor]: Well, let’s take it step-by-step. Did he tell you and were

you aware that in the records supposedly [the victim] gave the defendant

$10 to go purchase beer? . . .

‘‘[Feuerstein]: Yes. Yes, I was aware of that.

‘‘[The Prosecutor]: Sure. And that he didn’t go buy the beer?

‘‘[Feuerstein]: Yes.

‘‘[The Prosecutor]: He went and bought marijuana for himself?

‘‘[Feuerstein]: Yes.

‘‘[The Prosecutor]: And you’re aware of the fact that these people are

homeless, right?

‘‘[Feuerstein]: Yes.

‘‘[The Prosecutor]: So $10 might mean kind of a little bit more to them

than somebody who’s getting $300 an hour, right? I mean, $10 could be a

lot of money?

‘‘[Feuerstein]: He was buying a beer with it. He was supposed to buy a beer.

‘‘[The Prosecutor]: Sure, but he didn’t buy the beer.

‘‘[Feuerstein]: No, but I guess my point is . . . the level of importance

. . . I would relate to what the money was to be spent on. Had it . . . been

I was to get food because we were starving is very different than go to the
store and get a beer, so . . . both the facts and the way he described it

seemed to indicate—and by facts I mean the police reports and other iterations which, as you point out, come from the defendant’s mouth—didn’t

seem to indicate that the money was to be spent on some particularly

important item whether you’re rich or poor.

‘‘[The Prosecutor]: Okay. Let me ask you if you can agree with this: That

potentially one of the disagreements between the two of them [was] the

spending of that $10?

‘‘[Feuerstein]: Yes.

‘‘[The Prosecutor]: Okay. Did you ask him if the fight was about that?

‘‘[Feuerstein]: I didn’t have to because he acknowledged that he didn’t

buy it and he let [the victim] know he didn’t buy it when he got back, so

it was clear that that was . . . an entry point to the discussion about whether

or not he had, in fact, sexually violated him. He . . . described it, that it

was part of the argument, so . . . it didn’t have to be—I’m not sure if I’m

not being clear, but he . . . just acknowledged that he didn’t buy it and

that he went back and told him he didn’t buy it.

‘‘[The Prosecutor]: Did you say to him, how do we know the fight wasn’t

about the $10?

‘‘[Feuerstein]: . . . The facts of the eventual outcome don’t in any way

relate to . . . an argument even among very poor people over $10.

‘‘[The Prosecutor]: . . . Well, let me ask you this: Have you heard about

people killing each other over parking spaces? You’ve heard of that, right?

‘‘[Feuerstein]: Yes.

‘‘[The Prosecutor]: I mean, the fact that $10 is a—

‘‘[Feuerstein]: I’m not sure it happens, but I’ve heard people say it.

‘‘[The Prosecutor]: Sure. [Ten dollars] may not be a good reason to get

in a fight where you end up killing somebody, but it happens, right?

‘‘[Feuerstein]: You know . . . I guess it can happen.

‘‘[The Prosecutor]: Sure. And I guess what I’m—

‘‘[Defense Counsel]: Your Honor, I’d object. That’s an inappropriate statement. These are gratuitous comments that are not questions. They should

be disregarded by the jury.

‘‘The Court: Sustained. The jury should disregard that question.

‘‘[The Prosecutor]: I’m asking you this: Did you consider that the motivation for this murder was a fight over the $10 and not this—

‘‘[Feuerstein]: I . . . considered any—

‘‘[The Prosecutor]: I’m not finished, please—and not this claim of sexual abuse?

‘‘[Feuerstein]: Yes, I considered it could have been any number of things.

‘‘[The Prosecutor]: And did you push him on that?

‘‘[Feuerstein]: I’m not sure what you mean by push him on that.

‘‘[The Prosecutor]: Hey, come on. It was about the $10. It wasn’t about

that.’’

15 Prosecutorial disobedience of court orders may result in reversal of a

defendant’s conviction on either oftwo doctrinal grounds. First, the disobedience may result in a due process violation that deprives the defendant of

his right to a fair trial. Alternatively, the disobedience, if done deliberately

or in bad faith, may justify reversal as a sanction pursuant to the appellate

courts’ supervisory powers. See, e.g., State v. Warholic, supra, 278 Conn.

406–407 and 407 n.30; State v. Ubaldi, 190 Conn. 559, 570–73, 462 A.2d 1001,

cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). For

additional discussion of reversal pursuant to our supervisory powers, see

footnote 24 of this opinion.

16 See also, e.g., State v. McLaren, 127 Conn. App. 70, 81–82, 15 A.3d 183

(2011) (improper for prosecutor to ask about specific inculpatory comment

in police report, and refer to it during summations, when trial court had

granted motion in limine deeming that comment highly prejudicial double

hearsay); State v. Jose G., 102 Conn. App. 748, 767–68, 929 A.2d 324 (2007)

(prosecutor improperly violated court orders barring questions about ‘‘Sirchie’’ rape kit because no such kit had been used in case, but violations,

which occurred several times during trial, were not frequent or severe),

aff’d, 290 Conn. 331, 963 A.2d 42 (2009); State v. Dews, 87 Conn. App. 63,

79–80, 864 A.2d 59 (use of stricken testimony resulting from ‘‘confusion or

mistake’’ not impropriety), cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).

17 A stage whisper is ‘‘a loud whisper by an actor that is audible to the

spectators but is supposed for dramatic effect not to be heard by one or

more of the actors . . . .’’ Merriam-Webster’s Collegiate Dictionary (11th

Ed. 2003).

18 In full context, we note that the state attempted to admit into evidence

certain medical records arising from the defendant’s visit to the Waterbury

Hospital emergency room in May, 2009, and then question Feuerstein about

whether their content would affect his opinion of the defendant. The trial

court sustained the defendant’s objection to these records, but ruled that

it would afford the state some ‘‘leeway on the cross-examination’’ because
the records had been disclosed by the defendant to the state, albeit not

reviewed by Feuerstein. The challenged exchange occurred shortly

thereafter.

19 In Floyd, this court considered the trial court’s authority to permit

hypothetical questions of expert witnesses, and concluded that ‘‘[t]he determination of the admissibility of a hypothetical question, at least except in

extreme cases, is not to be made by the application of any rule of thumb.

. . . Rather, it calls for the exercise of a sound discretion as to whether

the question, even though it does not contain all of the facts in evidence,

presents the facts in such a manner that they bear a true and fair relationship

to each other and to the whole evidence in the case . . . is not so worded

as to be likely to mislead or confuse the jury; and is not so lacking in the

essential facts as to be without value in the decision of the case.’’ (Citations

omitted.) Floyd v. Fruit Industries, Inc., supra, 144 Conn. 666; see also

State v. David N.J., 301 Conn. 122, 133–34, 19 A.3d 646 (2011) (applying

rule from Floyd and citing commentary to Connecticut Code of Evidence

§ 7-4 [c] for proposition that rule is ‘‘ ‘applied with increased liberality when

the hypothetical question is framed on cross-examination and for the purpose of impeaching and testing the accuracy of the expert’s opinion testimony given on direct examination’ ’’).

20 We note that, at this point, the defendant moved for a mistrial, claiming

that it was warranted because of the medical records comment and the

prosecutor’s failure to adhere to the evidentiary ruling. The trial court denied

the motion. See part II of this opinion.

21 Practice Book § 40-12 provides in relevant part: ‘‘Upon written request

by a defendant . . . the judicial authority may direct the prosecuting authority to disclose in writing to the defendant and make available for inspection,

photographing, copying and reasonable testing any other relevant material

and information not covered by Section 40-11 which the judicial authority

determines on good cause shown should be made available.’’

22 At trial, the court initially expressed its concern about this line of

questioning on the ground that the prosecutor had not complied with § 7-

4 of the Connecticut Code of Evidence by phrasing the questions as hypotheticals. Defense counsel, however, stated that his concern was that the state

had failed to advise him, in response to his motion seeking the disclosure

of uncharged misconduct, ‘‘of a threat that was made by my client to his

girlfriend involving a knife in which the knife was removed from his physical

being.’’ After the state argued that the trial court previously had barred it

from offering evidence of that event, the trial court directed the state to

ask the questions in the form of a hypothetical, with a witness to testify to

that point during the state’s rebuttal case.

With respect to the disclosure issue, the state contended that its obligation

was limited to uncharged misconduct to be offered during its case-in-chief

to prove motive, identity, or corroborate crucial prosecution testimony, and

that it could appropriately use the misconduct to challenge Feuerstein during

cross-examination. The defendant, however, argued that the state was engaging in ‘‘trial by ambush’’ because he was unaware of the information, despite

the state’s prior disclosures and the open file policy. Accordingly, the defendant moved for a mistrial. In response, the state argued that information

about the hospital visit was contained in the medical records that had been

disclosed by the defendant, but acknowledged that the knife incidents were

obtained from witness interviews with the defendant’s friends, which were

not conveyed to the defendant because the state did not deem it to be

‘‘criminal behavior’’ or offer it during the case-in-chief.

23 In the additional facts section of his brief, the defendant also recites

numerous other comments during the prosecutor’s closing and rebuttal

arguments that he claims are improper. The defendant does not, however,

provide any analysis in his brief supporting a claim that those particular

arguments were in fact improper. Accordingly, we view the defendant’s

citation to those arguments as intended to support his claim, in the due

process analysis, that the prosecutors ‘‘capitalized’’ on misconduct during

Feuerstein’s cross-examination by using that impropriety to support themes

developed during summations.

24 The defendant also asks us to use our supervisory powers over the

administration of justice to reverse his conviction. As an alternative to

concluding that prosecutorial impropriety deprived a defendant of a fair

trial in a particular case, ‘‘we exercise our supervisory authority in this

context to redress repeated and deliberate misconduct by a prosecutor

seeking to increase the likelihood of conviction even though that conduct

does not necessarily require reversal as a due process violation. . . . [W]e

pay particular attention to the fact that the prosecutor knew or should have

known that the conduct was improper and was part of a pattern of similar

misconduct in other cases. We exercise our supervisory authority in order

to protect the rights of defendants and to maintain standards among prosecutors throughout the judicial system rather than to redress the unfairness of
a particular trial. We do so in order to send a strong message that such

conduct will not be tolerated.’’ (Internal quotation marks omitted.) State v.

Payne, 260 Conn. 446, 451–52, 797 A.2d 1088 (2002). Reversal under our

supervisory authority is an appropriate response to deliberate prosecutorial

impropriety that ‘‘is so offensive to the sound administration of justice that

only a new trial can effectively prevent such assaults on the integrity of the

tribunal.’’ State v. Ubaldi, supra, 190 Conn. 575.

Consistent with the ‘‘elephant in the room’’ at oral argument before this

court, the defendant cites State v. Santiago, 143 Conn. App. 26, 27, 66 A.3d

520 (2013), wherein the Appellate Court recently utilized its supervisory

powers to reverse a murder conviction on the ground that Attorney Mariani,

the prosecutor who cross-examined Feuerstein in the present case, ‘‘has

engaged in a deliberate pattern of improper conduct in this case and others,

and he remains undeterred by pronouncements by [the Appellate Court]

and our Supreme Court that his conduct was improper, we believe that

nothing short of reversal will have the effect of deterring him.’’ Given the

relatively minor nature of the impropriety identified in the present case,

and the fact that the defendant has not identified a post-Santiago wave of

deliberate impropriety by Attorney Mariani that requires another reversal

for deterrent or sanctioning purposes, we decline to exercise our supervisory

powers to reverse this conviction, notwithstandingAttorney Mariani’s choice

of an advocacy style that renders him a prosecutorial Icarus flying near the

sun of reversible impropriety.

25 The defendant also includes in his brief a discussion and citations to

case law suggesting that the trial court abused its discretion by admitting

the uncharged misconduct into evidence. The defendant does not, however,

identify any such ruling by the trial court admitting such evidence; indeed,

the trial court struck such references from the record and directed the jury

not to consider them. Accordingly, we decline to consider this claim as one

challenging an evidentiary ruling.

26 The defendant also cites the testimony of Jason Benoit, who, while

testifying about the events of the day when the defendant confessed to

killing the victim, mentioned—without prompting from the prosecutor—

that the defendant ‘‘showed up at my house alone and he came inside, we

smoked some weed, sat down and talked and that’s when he broke down

and told me what had happened.’’ After some discussion between the parties

and the trial court about this testimony given a motion in limine addressing

marijuana use, the defendant declined the offer of a curative instruction

and the prosecutor represented that she would admonish Benoit and other

witnesses not to talk about the posthomicide marijuana topic in future

testimony. Defense counsel did not, however, move for a mistrial with

respect to Benoit’s testimony about the marijuana, and has not specifically

included it as a ‘‘cumulative’’ ground for a mistrial before the trial court.

Accordingly, we decline to consider it further in this opinion.

27 Defense counsel then assented to the trial court’s proposal not to draw

specific attention to Innaimo’s comment, but simply to ‘‘make one general

comment to you. You should understand clearly that the defendant here is

on trial only for the crimes charged in the information not for any other

activities. I just want to make that statement to you.’’

28 The trial court instructed the jury that: ‘‘You heard no evidence that

the defendant threatened to kill or stab his girlfriend. You can’t consider it

in any way at this point.

‘‘Second, the issue of reasonableness of the defendant’s actions is a question for you, the jury, to determine. Any questions and answers during the

state’s cross-examination related to the issue of the reasonableness of the

defendant’s action you cannot consider in any way and those questions and

answers have been stricken from the record.

‘‘Finally, the evidence that you can consider are the responses of the

witnesses. The questions that are asked are not evidence. It’s the responses

that are the evidence and the full exhibits that you will have to consider

during your deliberation. Questions, arguments are not evidence. The evidence is the answers to the questions that are posited by the attorneys.’’

29 We note that it is undisputed that the defendant preserved this claim

through a motion for a judgment of acquittal, which the trial court denied.

30 Practice Book § 42-15 provides: ‘‘The judicial authority to whom a matter

has been referred for trial may in its discretion entertain a motion in limine

made by either party regarding the admission or exclusion of anticipated

evidence. Such motion shall be in writing and shall describe the anticipated

evidence and the prejudice which may result therefrom. The judicial authority may grant the relief sought in the motion or such other relief as it may

deem appropriate, may deny the motion with or without prejudice to its

later renewal, or may reserve decision thereon until a later time in the proceeding.’’

31 We disagree with the defendant’s argument that it is ‘‘impossible to

meaningfully distinguish between the allowed testimony of [Trazanda]
Brown concerning a homosexual encounter of the defendant, and the testimony of Ingram, concerning a homosexual encounter with the victim.’’

Brown, a friend of the defendant and the victim, testified that the defendant

did not react adversely to learning that he had danced with and kissed a

man who was dressed as a woman at a party. The trial court reasonably

could have determined that the defendant’s reaction to a same sex sexual

encounter was relevant to whether a sexual advance by the victim would

have triggered an extreme emotional disturbance. In contrast, the victim’s

sexual orientation, which was implicated by Ingram’s testimony, was not a

disputed factual issue in this case.