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STATE OF CONNECTICUT v. LEVARR FRASIER

(AC 38625)

DiPentima, C. J., and Keller and Prescott, Js.

Argued September 16—officially released November 29, 2016

(Appeal from Superior Court, judicial district of New

Haven, O’Keefe, J.)

Emily Wagner, assistant public defender, for the

appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with

whom, on the brief, were Michael Dearington, state’s

attorney, and Michael Pepper, senior assistant state’s

attorney, for the appellee (state).
Opinion

DiPENTIMA, C. J. The defendant, Levarr Frasier,

appeals from the judgment of conviction,rendered after

a jury trial, of manslaughter in the first degree with a

firearm in violation of General Statutes § 53a-55a,1

assault in the first degree in violation of General Statutes § 53a-59 (a) (5),2 and carrying a pistol without a

permit in violation of General Statutes § 29-35.3 On

appeal, the defendant claims that (1) the court improperly instructed the jury on accessorial liability and (2)

he was denied his right to a fairtrial due to prosecutorial

impropriety. We affirm the judgment of the court.

The jury reasonably could have found the following

facts. Prior to the night in question, Adrian Redmond

and Travis James had several altercations regarding

the mother of Redmond’s child. James and the child’s

mother were dating, and Redmond took offense to

James ‘‘going around telling people about some

[explicit] photos that she had sent [James].’’ In addition,

James believed that Redmond and the child’s mother

still had an ongoing relationship. Redmond confronted

James and requested that he stop publicizing the photographs. In response, James threatened Redmond, warning him that ‘‘I’ll have you killed’’ and ‘‘just wait here

and you’ll see. I’ll have you shot right now because I

have somebody who wants you dead anyway.’’

William Brown, a longtime friend of Redmond, was

often with Redmond during the disputes between James

and him. In the late evening of January 11, 2011, Brown

drove Redmond to the Crown Fried Chicken restaurant

on Dixwell Avenue in New Haven to get something to

eat. While Brown and Redmond were parked at a corner

near the restaurant, James and the defendant exited

the restaurant, and James approached the driver’s side

window of Brown’s vehicle. In addition to his threats

to Redmond, James had been leaving threatening voice

messages on Brown’s phone because James believed

Brown was ‘‘playing both sides of the fence’’ in his

dispute with Redmond. James and Brown then engaged

in a heated argument, and Brown demanded that James

stop leaving threatening voice messages on his phone.

At one point, James said that he was ‘‘at the end

of his rope’’ and did not ‘‘care about life anymore.’’

Redmond attempted to diffuse the argument and stated

that ‘‘it’s not that serious,’’ and sought to settle their

differences at another time. James remained furious

and walked away from the vehicle toward the defendant. After a brief conversation, James and the defendant then returned to the driver’s side of Brown’s

vehicle. James again mentioned that Brown was ‘‘playing both sides of the fence,’’ and directed the defendant

to kill both of them. The defendant then pulled out a

firearm and opened fire.

Redmond was shot in the left elbow and managed to
flee to a nearby alley. Brown also was able to flee the

vehicle but was shot and collapsed on the street. Once

the defendant stopped shooting, he and James fled.

Police arrived at the scene shortly after the shooting

and found Brown lying unconscious on the street.

Brown was transported to the Hospital of St. Raphael

where he spent a week on life support before he died

from the gunshot wounds. Redmond was transported

to Yale-New Haven Hospital and eventually recovered

from his injuries.

At the hospital, Redmond spoke to Detective Wayne

Bullock regarding the shooting. Redmond identified

James and the defendant, by their street names, as those

responsible for the attack and named the defendant as

the shooter.4 Bullock followed up on this information

and learned that James and the defendant were known

to associate with one another and were frequently in

the neighborhood where the shooting occurred.

The defendant was arrested three days after the

shooting by Officer John Palmer. After voluntarily waiving his Miranda rights, the defendant made several

statements to police indicating that he was with George

White at White’s home at the time of the shooting, where

he remained until he walked home at 2 a.m. on January

12. Bullock followed up with White who provided a

different story.5 Bullock then confronted the defendant

with White’s account, but the defendant refused to

change his story.

Bullock conducted a second interview with White

approximately one month after the attack. During this

interview, White provided a different account from his

earlier one and explained that after he got out of work

at 10 p.m. on January 11, he picked up the defendant,

they purchased marijuana, and then went back to his

home. White stated that the defendant ‘‘didn’t seem

himself’’ and that the defendant told White either ‘‘I

think I shot somebody’’ or ‘‘I shot someone tonight.’’

According to White, the defendant stayed at his home

until the following morning.

The defendant subsequently was charged, solely as

the principal, with murder, assault in the first degree,

and carrying a pistol without a permit and was tried

by a jury. The jury was unable to reach a verdict, and

the court declared a mistrial. The defendant was tried

again and charged, as a principal or an accessory, with

murder, assault in the first degree, and carrying a pistol

without a permit. The jury acquitted the defendant of

murder and convicted him of the lesserincluded offense

of manslaughter in the first degree with a firearm,

assault in the first degree, and carrying a pistol without

a permit. The court rendered judgment accordingly and

sentenced the defendant to forty years of incarceration.

This appeal followed.

I
The defendant first claims that the court improperly

instructed the jury on the doctrine of accessorial liability. He maintains that the court’s instructions were

improper in three ways, which we analyze in turn: (1)

that the court’s ‘‘intentionally aid’’ instruction was misleading; (2) that the court’s instruction that it was ‘‘not

necessary to prove that the defendant was actually present or actively participated’’ was misleading; and (3)

that ‘‘the court erroneously merged all of the offenses

into a single instruction.’’ We disagree.6

As a preliminary matter, we note that the defendant

neither filed a written request to charge nor objected

to the court’s instructions as given. ‘‘It is well established that [t]his court is not bound to review claims

of error in jury instructions if the party raising the

claim neither submitted a written request to charge

nor excepted to the charge given by the trial court.’’

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

91 Conn. App. 227, 244, 880 A.2d 183, cert. denied, 276

Conn. 908, 884 A.2d 1029 (2005). The defendant now

seeks review of his claim pursuant to State v. Golding,

213 Conn. 233, 239–40, 587 A.2d 823 (1989).7

‘‘Under

Golding, a defendant may prevail on an unpreserved

claim only if the following conditions are met: (1) the

record is adequate to review the alleged claim of error;

(2) the claim is of constitutional magnitude alleging

the violation of a fundamental right; (3) the alleged

constitutional violation . . . exists and . . . deprived

the defendant of a fairtrial; and (4)if subjectto harmless

error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a

reasonable doubt.’’ (Internal quotation marks omitted.)

State v. Tarver, 166 Conn. App. 304, 321, 141 A.3d 940,

cert. denied, 323 Conn. 908, A.3d (2016).

We will review the defendant’s claim here because

the record is adequate for review and the defendant’s

claim that the court improperly instructed the jury is

of ‘‘constitutional dimension.’’ State v. Hines, 89 Conn.

App. 440, 455, 873 A.2d 1042 (claims of improper jury

instructions ‘‘as to an element of a charged offense is

of constitutional dimension’’; thus Golding review is

appropriate), cert. denied, 275 Conn. 904, 882 A.2d 678

(2005). We conclude however, that the defendant has

failed to demonstrate the existence of a constitutional

violation that deprived him of a fair trial.8

At the conclusion of the court’s instruction on the

elements of the charged offenses, the court stated that

‘‘[a]ll the language that I’ve given you up to this point

has been about being convicted as a principal, the

shooter. . . . This is language which pertains to

another theory of responsibility called accessory.’’ The

court defined an accessory as ‘‘[a] person acting with

the mental state required for the commission of an

offense, who solicits, requests, commands, importunes,

or intentionally aids another person to engage in con-
duct which constitutes [an] offense shall be criminally

liable for such conduct and may be prosecuted and

punished . . . as if he were the principal offender.’’

The court then outlined the requirements under General Statutes § 53a-8 (a) constituting criminal liability

as an accessory.9 Throughout the court’s accessory

instruction, it defined intent generally and iterated that

‘‘[i]ntentionally aid . . . means to act in any manner,

the conscious objective . . . of which is to assist, help,

or support. If the defendant did any of these things . . .

he is guilty of murder, assault in the first degree, or

any lesser included offenses, depending on . . . what

you determined, just as though he had directly committed it or participated in the commission of those

crimes.’’

The court further instructed the jury that ‘‘[t]o establish the guilt of a defendant as an accessory for assisting

in the criminal act of another, the State must prove

criminality of intent and community of unlawful purpose. That is, for the defendant to be guilty as an accessory, it must be established that he acted with the

mental state necessary to commit murder, any of the

lesser included offenses, assault in the first degree or

any of the lesser included offenses, and that in furtherance of the crime, he solicited, requested, commanded,

importuned, or intentionally aided the principal to commit murder, assault in the first degree, or any of the

lesser included offenses. Evidence of mere presence as

an inactive companion or passive acquiescence or the

doing of innocent acts which in fact aid in the commission of a crime is insufficient to find the defendant

guilty as an accessory under the statute. Nevertheless,

it is not necessary to prove that the defendant was

actually present or actively participated in the actual

commission of the crime . . . . For you to find the

defendant guilty of this charge . . . you must unanimously find that the State has proven all the elements

of whatever crime you find proven beyond a reasonable

doubt.If you conclude the defendantis guilty as a principal or as an accessory, you do not need to be unanimous

regarding whether you believe he was a principal or

accessory as long as all twelve jurors agree that at least

one method, principal or accessory, has been proven

beyond a reasonable doubt.’’

At the conclusion of its charge, the court advised the

jury to send a note to the court if it had any questions.

The court stated that ‘‘[i]f you send me a lot of notes,

that’s okay. If you don’t send me any notes, that’s fine

too. . . . By explaining the note process, I’m not trying

to encourage or discourage you from sending notes. If

you have a question put it in a note. I’ll read it [and]

answer it if I can.’’ The jury was also aware that its

questions should ‘‘be as specific as possible.’’

During deliberations, the jury sent a note to the court

requesting clarification on accessorial liability. The
court answered the question by stating that ‘‘[a]ccessorial liability doesn’t create a new count or a new crime.

. . . The State is entitled to . . . put in . . . a different theory of liability [other than as principal]. . . .

[T]hey are [also] entitled to say to the jury, we’ve

charged this defendant as the shooter, but we also want

you to consider the theory . . . where . . . if he is not

the shooter, he intentionally aided the shooter. . . .

Keep in mind, that to be legally responsible as an accessory, you have to have the same intent as the principal,

as the shooter.’’

In response to the jury’s question, the court provided

an example of accessorial liability. The court stated

‘‘[i]f you innocently give a ride to someone who is going

to rob a bank, and they go in and rob a bank, and . . .

you don’t know what they’re [going to do] . . . you

are not guilty of bank robbery. If you’re in with the

bank robber and have the same intent to rob the bank

and drive the car, you’re as responsible as the . . .

person who went inside. . . . The important part is

that . . . [y]ou have to have the same intent as the

. . . principal if you’re the accessory. . . . Focus on

the written instructions . . . that I gave you. Those

include the elements, which of course have to be proven

beyond a reasonable doubt.’’

As previously noted, we review the defendant’s

unpreserved claims of instructional error under Golding. ‘‘[I]n reviewing a constitutional challenge to the

trial court’s instruction, we must consider the jury

charge as a whole to determine whether it is reasonably

possible that the instruction misled the jury. . . . The

test is whether the charge as a whole presents the case

to the jury so that no injustice will result. . . . We will

reverse a conviction only if, in the context of the whole,

there is a reasonable possibility that the jury was misled

in reaching its verdict. . . . A jury instruction is constitutionally adequate if it provides the jurors with a clear

understanding ofthe elements of the crime charged, and

affords them proper guidance for their determination of

whether those elements were present. . . . An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as

guaranteed by the fourteenth amendment to the United

States constitution and article first, § 8, of the Connecticut constitution. . . . The test of a charge is whether

it is correct in law, adapted to the issues and sufficient

for the guidance of the jury. . . . The primary purpose

of the charge is to assist the jury in applying the law

correctly to the facts which they might find to be established. . . . The purpose of a charge is to call the attention of the members of the jury, unfamiliar with legal

distinctions, to whatever is necessary and proper to

guide them to a right decision in a particular case.’’

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

165 Conn. App. 255, 288–89, 138 A.3d 1108, cert. denied,

322 Conn. 904, 138 A.3d 933 (2016). ‘‘As long as [the
instructions] are correct in law, adapted to the issues

and sufficient for the guidance of the jury . . . we will

not view the instructions as improper.’’ (Internal quotation marks omitted.) Id., 288.

A

The defendant first argues that the jury was misled

by the court’s ‘‘intentionally aid’’ instruction. Specifically, the defendant argues that the jury was permitted

to convict the defendant ‘‘if he engaged in any conduct

with the intent [necessary for the] offenses, rather than

conduct that aids . . . .’’ This argument is perplexing.

The court explicitly stated that, to convict the defendant

as an accessory, ‘‘it must be established that he acted

with the mental state necessary to commit . . . [the

principal’s intended crime] and that in furtherance of

that crime, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit’’

the crime. This language unequivocally refutes the

defendant’s argument. The court instructed the jury that

the intent for accessorial liability was distinct from

principal liability and that to convict the defendant as

an accessory, both levels of intent must be found.

The defendant also contends that the court’s instruction that ‘‘[i]ntentionally aid . . . means to act in any

manner, [with] the conscious objective . . . to assist,

help, or support,’’ lowered the state’s burden of proof

and eliminated the requirement that the defendant actually assist in the commission of the crime. We disagree.

Immediately preceding the court’s definition of

‘‘intentionally aid,’’ the court informed the jury of a

separate definition of intent that ‘‘[a] person acts intentionally with respect to a result when his conscious

objective is to cause such result.’’ The court sought

to provide clarity among these distinct definitions and

stated that ‘‘[t]o establish the guilt of a defendant as

an accessory for assisting in the criminal act of another,

the State must prove criminality of intent and community of unlawful purpose.’’ (Emphasis added.) The

court’s charge, viewed in its entirety, did not permit the

jury to convict the defendant as an accessory without

finding both levels of intent.

The defendant also takes issue with the court’s use

of the phrase ‘‘to act in any manner’’ when defining

‘‘intentionally aid.’’ The court’s use of that phrase is not

problematic. The court instructed that the defendant’s

conduct, to be guilty as an accessory, required the same

intent as the principalto accomplish the intended crime,

in addition to the intent to aid the principal. The court’s

later discussion of ‘‘intentionally aid’’ clarified that the

jury’s responsibility was to find that the defendant possessed two distinct levels of intent, not that the defendant could act in any general manner and still be

culpable. The court’s instruction of ‘‘any manner’’ was

limited to the specific intentto ‘‘assist, help, or support,’’
in the context of ‘‘intentionally aiding’’ as an accessory.

In our view, the court’s instruction charged the jury

to find the defendant guilty as an accessory if his conduct was intended to ‘‘assist, help, or support’’ the principal and that he also possessed the same intent as the

principal. In addition, the court read the statute aloud

to the jury and provided copies of the instructions containing the elements and definitions of accessorial liability, and clarified the meaning of accessorial liability at

the jury’s request. We thus disagree that there is any

reasonable possibility that the jury was misled.

B

Next, the defendant argues that, in light of the specific

facts of this case, the jury was misled by the court’s

instruction to the jury that ‘‘it is not necessary to prove

that the defendant was actually present or actively participated in the actual commission of the crime of murder, assault, or any of the lesser included offenses.’’

Specifically, the defendant argues that two particular

sentences within the court’s accessorial instruction are

‘‘flatly inconsistent’’ and that the jury was misled by

the statements. We disagree.

The challenged instruction provided that: ‘‘Evidence

of mere presence as an inactive companion or passive

acquiescence or the doing of innocent acts which in

fact aid in the commission of a crime is insufficient to

find the defendant guilty as an accessory under the

statute. Nevertheless, it is not necessary to prove that

the defendant was actually present or actively participated in the actual commission of the crime of murder,

assault, or any of the lesser included offenses.’’ The

defendant argues that the first sentence of the preceding

excerpt is inconsistent with the second sentence. Further, the defendant argues that the second sentence

was misleading and confusing because, in this case, the

state was required to prove that the defendant was

present and actively participated in the commission of

the crime.

The first challenged statement instructed the jury,

in essence, that simply being present at the scene is

insufficient to find the defendant guilty as an accessory.

The second challenged statement, in contrast, identified

that accessorial liability does not require physical presence, so long as the accessory intentionally aided in the

commission of the crime and simultaneously possessed

the same intent as the principal. These statements,

when viewed in context, provide a helpful and illustrative distinction between what constitutes accessorial

liability and what does not. The court further clarified

this concept when it provided the ‘‘bank robbery’’ example following the jury’s questions.10

After examining the court’s instructions in their

entirety, the instructions were not misleading, but were

designed to assist the jury in understanding the concept
of accessorial liability. Before making the challenged

statements, the court had instructed the jury that the

defendant must have intentionally aided the principal in

the commission of the underlying crime. The challenged

statements then distinguished conduct that constitutes

accessorial liability and conduct that does not. The

defendant’s argument takes the challenged statements

out of context when in fact they appropriately described

the range of conduct that constitutes accessorial liability. The challenged statements were intended to provide

a comprehensive example to ‘‘the meaning of a complex

legal concept’’; State v. Hines, 187 Conn. 199, 210, 445

A.2d 314 (1982); and that example was not an ‘‘unfair

statement of the law which it was offered to illustrate.’’

Id., 212–13. Accordingly, we conclude that the challenged statements were neither inconsistent nor misleading.

C

Finally, the defendant argues that the court’s accessorial liability instructions failed to properly ‘‘delineate

the intent and conduct’’ necessary to convict the defendant as an accessory with respect to each charge and

as a result, reduced the state’s burden of proof and

erroneously merged the offenses. Specifically, the

defendant argues that the court’s singular accessorial

instruction that followed the charge on the specific

elements of the substantive offenses improperly permitted the jury to convict the defendant as an accessory

with respect to a particular offense if it found he intentionally aided the principal, but possessed an unrelated

intent regarding any of the underlying substantive

crimes for which he was charged. We disagree.

The court first instructed the jury on the elements of

each substantive offense and then gave the accessorial

liability instruction. The court instructed the jury that

to find the defendant guilty as an accessory ‘‘it must

be established that [the defendant] acted with the mental state necessary to commit murder, any of the lesser

included offenses, assault in the first degree or any of

the lesser included offenses, and that in furtherance of

that crime, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit

murder, assault in the first degree, or any of the lesser

included offenses.’’ The defendant argues that, for

example, this instruction allowed the jury to find the

defendant guilty of manslaughter if the jury found he

possessed the intent to cause serious physical injury,

but instead aided in the commission of assault.

Contrary to the defendant’s argument, the court was

clear throughout its instructions that it was necessary

to find that the defendant possessed the same intent

as the principal for each particular offense. The court

instructed the jury to ‘‘[k]eep in mind, that to be legally

responsible as an accessory, you have to have the same

intent as the principal, the shooter.’’ (Emphasis added.)
In our view, the court’s instructions were unambiguous

and neither diluted the state’s burden of proving the

defendant’s guilt nor misled the jury. Instead, the jury

was instructed that in order to convict the defendant,

he must have possessed the same intent as the principal,

in addition to the intent to intentionally aid the principal. The court also provided the jury with written copies

of the instructions that accurately stated the law of the

substantive charged offenses and accessorial liability.

Additionally, the court’s instruction to the jury that the

defendant act in ‘‘furtherance’’ of the underlying crime

exemplifies that it was necessary for the jury to find

that the defendant possessed the same intent as to the

principal’s underlying crime and that the defendant

acted with the intent to intentionally aid the principal

in the commission of that offense.

When viewed in their entirety, the court’s oral and

written instructions sufficiently enabled the jury to consider each charged substantive offense because the

court separately described the necessary elements that

the state must prove beyond a reasonable doubt. The

court’s instructions did not merge all of the offenses

into a single instruction. Accordingly, the court’s

instructions were not improper.

II

The defendant also claims that he was denied a fair

trial due to prosecutorial impropriety. Specifically, he

argues that during closing arguments, the prosecutor

impermissibly (1) shifted the burden of proof to the

defendant and (2) misstated the evidence. We conclude

that there was no impropriety, and therefore do not

address the defendant’s claim that the alleged improprieties violated his federal and state due process right to

a fair trial.

As a preliminary matter, we note that the defendant

did not preserve his claim by objecting at trial to the

challenged statements. However, ‘‘[o]nce prosecutorial

impropriety has been alleged . . . it is unnecessary for

a defendant to seek to prevail under State v. Golding

. . . and it is unnecessary for an appellate court to

review the defendant’s claim under Golding. . . . In

analyzing claims of prosecutorial impropriety, we

engage in a two step analytical process. . . . The two

steps are separate and distinct. . . . We first examine

whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether

it deprived the defendant of his due process right to

a fair trial. . . . In other words, an impropriety is an

impropriety, regardless of its ultimate effect on the fairness of the trial.’’ (Citation omitted; internal quotation

marks omitted.) State v. Fasanelli, 163 Conn. App. 170,

174, 133 A.3d 921 (2016).

A

The defendant first argues that the state ‘‘unfairly
shifted’’ the burden of proof to the defendant during

its closing and rebuttal argument. He asserts that the

prosecutor’s argument suggested to the jury that the

defendant was required to ‘‘produce a compelling’’

defense theory, thereby shifting the burden from the

state to the defendant. We disagree.

During his closing argument, the prosecutor stated

to the jury that the state was ‘‘not sure what the theory

of defense here is, and we’re all going to hear that for

the firsttime in a few minutes. I can guess, I can surmise,

and maybe one of those theories is, that well the defendant . . . was not on Pond and Dixwell at 10:06 p.m.

back on January 11, 2011. Another one may be, well

[the defendant] was there, but the other guy did it.

[James] is the shooter. I’m not sure . . . if either of

those will pan out, but we’ll hear that in a minute.’’

During rebuttal, the prosecutor stated: ‘‘I’m not

exactly sure . . . what the theory of defense is. Is it

that [the defendant] was there but he didn’t do the

shooting or he was playing with pit bulls for nine hours

at his friends . . . house? I’m not sure about that.’’

Throughout its closing and rebuttal arguments, the state

identified evidence presented throughout the course of

the trial that supported its case and consistently stated

that the burden rested with the state.

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

improper . . . .’’ (Citation omitted; internal quotation

marks omitted.) State v. Otto, 305 Conn. 51, 77, 43 A.3d

629 (2012). Furthermore, ‘‘[our Supreme Court] previously has acknowledged: [P]rosecutorial [impropriety] of constitutional magnitude can occurin the course

of closing arguments. . . . In determining whether

such [impropriety] has occurred, the reviewing court

must give due deference to the fact that [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. . . . [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.) Id., 76.

The defendant argues that the prosecutor’s statements during closing and rebuttal argument ‘‘shifted its

burden of proof’’ by suggesting that the defendant was

required to produce evidence to prove his innocence.

Further, the defendant asserts that the prosecutor’s

statements called for the defendant to produce a ‘‘successful theory of defense for the jury’’ and, in doing so,

improperly shifted the burden.

The state counters that, when viewed in context, the
prosecutor’s statements are merely assumptions and

that ‘‘it is clear that the prosecutor was not questioning

whether the theories of the defense would . . . be convincing—but whether defense counsel would, in his

closing, actually would be making the arguments

described by the prosecutor.’’ Next, the state argues

that the prosecutor was commenting on conflicting evidence, where the defendant was at the time of the

shooting, that should be considered a ‘‘fair argument,

as it was based on the evidence.’’ Finally, the state

claims that the prosecutor‘‘never argued that the defendant had to successfully prove [his defense] to avoid

conviction.’’

The defendant identifies two cases to support his

claim. First, the defendant claims that United States v.

Simon, 964 F.2d 1082 (11th Cir. 1992), cert. denied, 507

U.S. 1033, 113 S. Ct. 1854, 123 L. Ed. 2d 476 (1993), is

analogous to the facts here. The prosecutor in Simon

suggested that, based on common sense, if the defendant was innocent, he would have produced exculpatory evidence, thus implying the burden rested with the

defendant. Id., 1086–87. In Simon, the United States

Court of Appeals for the Eleventh Circuit observed that

‘‘[p]rosecutors must refrain from burden-shifting arguments which suggest that a defendant has an obligation

to produce any evidence or to prove innocence.’’ Id.,

1086.

Second, in State v. Williams, 41 Conn. App. 180, 674

A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950

(1996), the defendant raised an alibi defense, and even

though the burden rested with the state to disprove the

defense, the prosecutor in that case improperly shifted

the burden. Id., 185–86. We stated that ‘‘[d]espite the

defendant’s objections that he did not have the burden

of proving his alibi defense and the trial court’s rulings

that the state was misrepresenting its burden of proof

to the jury, the prosecutor repeatedly maintained that

the defendant purposefully and selectively showed

unclear surveillance photographs to the jury because

he had no better evidence in support of his alibi . . . .’’

Id., 186–87. We held that the state’s suggestion that

the defendant had ‘‘no better evidence,’’ was improper

because it tended to ‘‘distort the state’s burden of proof

and . . . allocate[d] to the defendant the burden

. . . .’’ Id., 187.

After a review of the record, we conclude that the

prosecutor’s statements in the present case were not

improper because it is unlikely the jury would have

understood the argument in the manner claimed by the

defendant. During closing and rebuttal argument, the

prosecutor conveyed several times to the jury that the

burden of proving the defendant’s guilt rested with the

state and identified relevant evidence that supported

the state’s case and would assist the jury in making its

findings. Contrary to the defendant’s argument, the
state never shifted the burden to the defendant and did

not suggest that the defendant was required to set forth

a ‘‘legitimate’’ defense. Instead, the prosecutor speculated what the defendant might argue on his closing

argument and questioned the plausibility of the defendant’s arguments. These statements were fair and reasonably based upon the facts in evidence.

Additionally, the challenged statements here are not

akin to those found improper in Simon or Williams.

Here, the state speculated what the defendant might

argue during his closing argument based on reasonable

inferences drawn from the evidence and attempted to

discredit it. The prosecutor presumably made these

statements to ensure that the jury focuses on what the

state deemed ‘‘pertinent’’ evidence. Again, the prosecutor’s statements did not imply that the defendant was

required to raise a defense. Instead, the challenged

statements were reasonable observations based upon

the evidence presented. Thus, we conclude that the

state did not shift the burden of proof to the defendant.

B

Next, the defendant argues that during the state’s

closing argument ‘‘the prosecutor misstated George

White’s testimony in such a way as to make it more

incriminating.’’ We disagree.

During trial, White testified that he was good friends

with the defendant and that he was with the defendant

around 10:30 p.m. on January 11, 2011. White testified

that he picked the defendant up approximately one

block from the defendant’s house; they went to purchase marijuana, and then returned to White’s house

to smoke and watch television. According to White, the

defendant stayed overnight at his house and left the

following morning.

The prosecutor asked White if ‘‘[a]t some point in

time [on the] evening [of January 11, 2011] when [the

defendant] was in your room, did he say something

about [what] he did before you picked him up on the

evening of January 11, 2011.’’ White testified that the

defendant told him that ‘‘I think I shot somebody.’’

White did not ask any follow-up questions because

White ‘‘did not want to get involved’’ in something that

did not involve him. In addition to White’s testimony,

Bullock testified that he was told by White during an

interview, that the defendant told White that ‘‘I shot

someone tonight.’’ (Emphasis added.)

During closing argument, the prosecutor stated in

relevant part: ‘‘[The defendant] obviously, from the

video, ran down Pond Street and probably got down

to that wooded area of Arch Street, where he eventually

hooked up with his good friend George White, whose

testimony, I would submit, went unimpeached and virtually unchallenged. And Mr. White said he picked up

the defendant in that location and that they went back
to Mr. White’s house up on Fitch Street, where the

defendant then tells him that he shot somebody that

night.’’ (Emphasis added.) Near the end of the state’s

rebuttal argument, the prosecutor again recounted

White’s contact with the defendant on January 11, and

stated that the defendant told White that ‘‘I shot

somebody.’’

The defendant argues that the prosecutor’s use of the

phrase ‘‘that night’’ when describing White’s testimony

was improper. Specifically, the defendant argues that

the statements improperly portrayed White’s testimony,

and in doing so, made it ‘‘more incriminating’’ because

White never testified that the defendant used that specific phrase. Further, the defendant claims that the prosecutor’s omission of ‘‘I think’’ from the defendant’s

statement that ‘‘I think I shot somebody’’ constitutes

impropriety.

The state counters by arguing that ‘‘the challenged

arguments were based in the evidentiary record’’ and

were not a ‘‘more incriminating version’’ of White’s testimony, and thus the defendant’s claims should be

rejected. The state argues that the prosecutor did not

‘‘state that White testified’’ but instead argued that the

defendant told White ‘‘that he shot somebody that

night.’’ The state also argues that the prosecutor’s portrayal of White’s testimony was a reasonable inference

based on the evidence. Furtherthe state urges this court

to resist parsing the language used by the prosecutor

during closing arguments.

It is well established that a prosecutor may not make

‘‘[a]n appeal to emotions that improperly diverts the

jury’s attention away from the facts and makes it more

difficult for it to decide the case on the evidence in the

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

Felix R., 319 Conn. 1, 10, 124 A.3d 871 (2015). Further,

‘‘[w]e must give the jury the credit of being able to

differentiate between argument on the evidence and

attempts to persuade [it] to draw inferences in the

state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the

other hand.’’ (Internal quotation marks omitted.) State

v. Chase, 154 Conn. App. 337, 345, 107 A.3d 460 (2014),

cert. denied, 315 Conn. 925, 109 A.3d 922 (2015).

Here, the prosecutor attempted to persuade the jury

to infer that the defendant actually shot someone on

January 11, 2011. The defendant stated to White that

he thought he shot somebody hours after the shooting

took place. It is not unreasonable to inferthat the defendant indeed shot someone the same night because he

divulged to his close friend that he thought he shot

somebody within hours of the shooting. Additionally,

White told Bullock that the defendant said ‘‘I shot someone tonight’’ when interviewed after the shooting.

The prosecutor’s statements were not a mischaracter-
ization of the evidence, but instead were permissibly

based on reasonable inferences from evidence introduced at trial. See State v. Warholic, 278 Conn. 354,

367, 897 A.2d 569 (2006) (‘‘the prosecutor may argue

for the reasonable inferences that the jury may draw

from the evidence adduced at trial, including the defendant’s commission of the crime’’). The prosecutor’s

argument that the defendant shot someone the night of

January 11, 2011, is supported by reasonable inferences

and the direct testimony of Bullock regarding his interview of White. Thus, the statements were not a mischaracterization of the evidence. Accordingly, we conclude

that the prosecutor’s comments were not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 53a-55a (a) provides in relevant part: ‘‘A person is

guilty of manslaughter in the first degree with a firearm when he commits

manslaughter in the first degree as provided in section 53a-55, and in the

commission of such offense he uses, or is armed with and threatens the

use of or displays or represents by his words or conduct that he possesses

a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .’’

2 General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is

guilty of assault in the first degree when . . . (5) with intent to cause

physical injury to another person, he causes such injury to such person or

to a third person by means of the discharge of a firearm.’’

3 General Statutes § 29-35 (a) provides in relevant part: ‘‘No person shall

carry any pistol or revolver upon his or her person, except when such person

is within the dwelling house or place of business of such person, without

a permit to carry the same issued as provided in section 29-28. . . .’’

4 Redmond testified that he knew the defendant as ‘‘Bolo’’ and James

as ‘‘Tank.’’

5 Bullock had a conversation with White overthe phone. White toldBullock

that he saw the defendant on January 11, 2011, at a gas station near his

home between 1 p.m. and 5 p.m., and ‘‘they just went on their separate ways

after saying hello.’’

6 We note that the court provided the jury with copies of the model jury

instructions from the Judicial Branch website that contained handwritten

edits by the court incorporating the facts and charges of this case. ‘‘[T]he

test of a court’s charge is not whether it is as accurate upon legal principles

as the opinions of a court of last resort but whether it fairly presents the

case to the jury in such a way that injustice is not done to either party

under the established rules of law. . . . As long as [the instructions] are

correct in law, adapted to the issues and sufficient for the guidance of the

jury . . . [an appellate court] will not view the instructions as improper.’’

(Internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 798, 772

A.2d 559 (2001). Although it may have been preferable that the court presented the charge in a more precise and lucid manner, the instructions

provided here to the jury were, in our view, sufficient under the criteria

discussed in Davis.

7 We note that the state has not claimed that the defendant implicitly

waived a claim of instructional error pursuant to State v. Kitchens, 299

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

8 The defendant also claims that his conviction should be reversed under

the plain error doctrine. See Practice Book § 60-5. ‘‘Review under the plain

error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of

and public confidence in the judicial proceedings. . . . Additionally, the

claimed error must be both clear and harmful enough such that a failure

to remedy the error would result in manifest injustice.’’ (Internal quotation

marks omitted.) State v. Aponte, 66 Conn. App. 429, 439, 784 A.2d 991 (2001),

cert. denied, 259 Conn. 907, 789 A.2d 995 (2002). In light of our resolution

of the defendant’s claims, that standard is not met.

9 General Statutes § 53a-8 (a) provides that: ‘‘A person, acting with the

mental state required for commission of an offense, who solicits, requests,

commands, importunes or intentionally aids another person to engage in

conduct which constitutes an offense shall be criminally liable for such
conduct and may be prosecuted and punished as if he were the principal

offender.’’

10 As noted previously in this opinion, the court provided an example of

accessorial liability following a question from the jury during its deliberations.