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STATE OF CONNECTICUT v. LAWRENCE

R. ANDREWS

(SC 18913)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,

Espinosa and Robinson, Js.

Argued February 18—officially released August 26, 2014

James B. Streeto, assistant public defender, for the

appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Terence D. Mariani, senior assistant state’s

attorney, for the appellee (state).
Opinion

ZARELLA, J. The defendant, Lawrence R. Andrews,

appeals from the judgment of conviction,rendered after

a jury trial, of one count of felony murder in violation

of General Statutes § 53a-54c.1 The defendant claims

that (1) the trial court improperly precluded the testimony of a key defense witness, (2) he was deprived of

his due process right to a fair trial by a pattern of

prosecutorial impropriety,(3) his conviction was fundamentally unfair because the state relied on a different

theory in his case than in the case against a coassailant,

(4) the evidence was insufficient to support his conviction forfelony murder, and (5)the trial court improperly

denied his motion to suppress his oral and written statements to the police confessing his role in the murder.

We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On March 21, 1999, a tenant at 17 Burton Street

in the city of Waterbury went to the basement to retrieve

his bicycle and discovered the partially clothed body

of the victim, Michelle McMaster, lying on the floor. A

police investigation subsequently determined that the

cause of her death was asphyxia by manual strangulation and that the evidence also was consistent with a

sexual assault.

For nearly one decade, the police were unable to

solve the crime. In 2008 and 2009, however, a purported

eyewitness, Donna Russell, was interviewed on several

occasions by detectives from the Waterbury Police

Department and gave three increasingly detailed written statements regarding what she had seen. In her

statements, Russell disclosed that, on the evening of

March 20, 1999, she went to the basement of 17 Burton

Street, a local drug hangout, for the purpose of using

heroin. Upon her arrival, four other people already were

there: the defendant, Barry Smith, a man she did not

know but who later was identified from a photographic

array as Orenthain Daniel, and the victim. As Russell

proceeded to inject herself with heroin, she heard the

defendant and the victim arguing about money or drugs.

The argument quickly escalated, and a struggle ensued,

during which the victim was knocked down. Afraid

that something ‘‘horrible’’ was about to happen, Russell

decided to flee. The last thing she saw upon escaping

from the basement was the defendant bending over the

victim and choking her, Smith holding down her arms,

and Daniel pulling down her pants. She also heard the

victim gasping for air and pleading for Russell’s help,

and the men saying they were going to have sex with

her one way or another.

The defendant was arrested on March 6, 2009, and

ultimately charged with murder and felony murder

based on the predicate felony of attempted robbery.2

On May 2, 2011, the defendant entered a plea of not
guilty and elected a jury trial. At trial, the court denied

the defendant’s motions for judgment of acquittal after

the state and the defense, respectively, rested their

cases. On June 14, 2011, the jury returned a verdict of

not guilty as to the count of murder and guilty as to

the count of felony murder, and the court subsequently

sentenced the defendant to a term of thirty-five years

incarceration. This appeal followed.

I

The defendant first claims that the trial court’s decision to preclude testimony from a key defense witness

violated the defendant’s constitutional right to present

a defense under the sixth amendment to the United

States constitution3 because the witness would have

established that the defendant had sufficient money to

buy drugs and thus lacked a motive to commit the

attempted robbery, the predicate offense for the felony

murder charge. The defendant further claims that the

testimony of the witness ‘‘would have provided vital

corroboration for his version of events, severely undercut the state’s theory, and bolstered the defendant’s

defense and his own testimony.’’ The state responds

that the trial court properly excluded the testimony as

irrelevant because it did not try the case on the theory

that the defendant was motivated to rob the victim due

to a lack of money. Rather, it tried the case on the

theory that the defendant wanted to have some or all

of the victim’s crack cocaine to satisfy his immediate

craving for drugs. The state also argues that the testimony was irrelevant because it would not have established that the defendant had any of his purported

money with him on the night of the murder. The state

finally argues that, even if the trial court committed

evidentiary error, the error was not harmful. We agree

with the state that the trial court’s ruling to preclude

the testimony was not improper.4

The following additional facts are relevant to our

resolution of this claim. Upon completion of the state’s

case-in-chief, during which Russell testified that the

defendant had money whenever she was around him,

defense counsel informed the court that he intended

to call the defendant and his sister, Tricia Andrews

(Andrews), as the only two defense witnesses. The

senior assistant state’s attorney (prosecutor)responded

with an oral motion in limine seeking an offer of proof

as to Andrews’ proposed testimony. In reply to the

motion, defense counsel represented that Andrews

would testify that the defendant had no motive to commit the attempted robbery because he had received a

large sum of money the previous year from his mother’s

estate. The prosecutor, however, objected on relevancy

grounds, arguing that it was ‘‘not the state’s position

that [the] crime was motivated by a lack of access

to funds. It’s the state’s position that this crime was

motivated by [the defendant’s] intense and long-stand-
ing desires to get crack cocaine any way he could when

he wanted it, and that the opportunity presented itself

in the basement [of] 17 Burton Street back in March of

1999.’’ The prosecutor also argued that the fact that

the defendant’s mother had died fairly recently was

irrelevant. Defense counsel replied that Andrews’ testimony regarding his mother’s death was not intended

to elicit sympathy from the jurors but to show that

the defendant had the financial resources necessary to

purchase drugs on a regular basis and he thus had no

motive to rob the victim.

The trial court granted the state’s motion in limine

on the ground that Andrews’ testimony was notrelevant

and that the defendant, who defense counsel had represented would testify in his own defense, could provide

the same information. Consequently, the defendant was

the sole defense witness.

The defendant subsequently testified that, following

his mother’s death in 1998, he received more than

$100,000 in cash and ‘‘annuities’’ that ‘‘should have

lasted the rest of [his] life.’’ He further testified that he

had gained initial access to this money in the summer

of 1998 and had used it to purchase ‘‘[j]ewelry, clothes,

crack [cocaine], mostly drugs, and clothes—mostly

drugs and clothes.’’

Defense counsel laterreferred in passing to the defendant’s inheritance during closing argument. After the

prosecutor initially argued that the case was about a

woman who had lost her life at the hands of the defendant, ‘‘who wanted to fuel his lifelong addiction to crack

cocaine,’’ defense counselresponded thatthe defendant

had not been present ‘‘when [the victim] was killed,’’

that his signed statement confessing to his presence

was involuntary because he did not understand what

he was signing, and that he had no motivation or ‘‘need

to go after anybody for . . . crack [cocaine]. In 1999,

[the defendant] had plenty of money’’ to purchase drugs.

The prosecutorreiterated during rebuttalthatthe defendant had been motivated to commit the attempted robbery by his immediate need to get more crack due to

his craving and desire for the drug. The prosecutor

described the defendant as a person consumed by a

‘‘drug fueled frenzy in that basement, seeing the opportunity to get himself that nice, big . . . rock of crack

cocaine.’’

We begin our analysis with the governing legal principles. It is well established that ‘‘[t]he federal constitution require[s] that criminal defendants be afforded a

meaningful opportunity to present a complete defense.

. . . The sixth amendment . . . [guarantees] 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. . . .
When defense evidence is excluded, such exclusion

may give rise to a claim of denial of the right to present

a defense. . . . 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 notrequire that a defendant

be permitted to present every piece of evidence he

wishes. . . . If the proffered evidence is not relevant,

the defendant’s right to confrontation is not affected,

and the evidence was properly excluded.’’(Internal quotation marks omitted.) State v. Hedge, 297 Conn. 621,

634, 1 A.3d 1051 (2010)

‘‘[R]elevant evidence is evidence that has a logical

tendency to aid the trier in the determination of an

issue. . . . Evidence is relevant if it tends to make the

existence or nonexistence of any otherfact more probable or less probable than it would be without such

evidence. . . . To be relevant, the evidence need not

exclude all other possibilities; it is sufficient if it tends

to support the conclusion [for which it is offered], even

to a slight degree. . . . All that is required is that the

evidence tend to support a relevant fact even to as

light degree, so long as it is not prejudicial or merely

cumulative.’’ (Internal quotation marks omitted.) Chief

Information Officer v. Computers Plus Center, Inc.,

310 Conn. 60, 102, 74 A.3d 1242 (2013).

‘‘We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . .

for an abuse of discretion. . . . We will make every

reasonable presumption in favor of upholding the trial

court’s ruling, and only upset it for a manifest abuse

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

v. Coccomo, 302 Conn. 664, 707, 31 A.3d 1012 (2011).

‘‘In determining whether there has been an abuse of

discretion, the ultimate issue is whether the court could

reasonably conclude as it did.’’ (Internal quotation

marks omitted.) State v. Arthur H., 288 Conn. 582, 595,

953 A.2d 630 (2008).

Turning to the defendant’s claim, we have stated that

‘‘[w]hether a trial court’s . . . restriction of a defendant’s or defense [witness’] testimony in a criminal trial

deprives a defendant of his [constitutional] right to present a defense is a question that must be resolved on

a case by case basis. . . . The primary consideration

in determining whether a trial court’s ruling violated a

defendant’s right to present a defense is the centrality

of the excluded evidence to the claim or claims raised

by the defendant at trial.’’ (Citation omitted; internal

quotation marks omitted.) State v. Sandoval, 263 Conn.

524, 546, 821 A.2d 247 (2003); accord State v. Saunders,

267 Conn. 363, 385, 838 A.2d 186, cert. denied, 541 U.S.

1036, 124 S. Ct. 2113, 158 L. Ed. 2d 722 (2004).

In the present case, the defendant’s theory of defense

was that he was not present at the crime scene.
Although defense counsel briefly mentioned during his

summation that the defendant had no motivation to

participate in the attempted robbery because he had

plenty of money with which to purchase drugs, counsel

repeatedly argued that the defendant was not present

in the basement when the murder was committed. In

making this point, he first challenged Russell’s recollection that the defendant was in the basement by suggesting that her memory was distorted because she was

under the influence of heroin. He next challenged the

validity of the defendant’s signed confession to the

police admitting his presence in the basement on the

ground that he did not understand what he was signing.

He then concluded: ‘‘And so there is a reasonable doubt,

even more so, even heavier, about whether [the defendant] was present at 17 Burton Street [in] March, 1999.

Yeah, there is information. Yeah, there is testimony.

Yes, there is some evidence, but there is no proof . . .

beyond a reasonable doubt that [the defendant] tried

to rob [the victim] with anyone, or that [the defendant]

killed [the victim], either acting as a principal or being

aided by someone else. You just don’t have that much

evidence. And you can’t say he probably did it.’’ Thus,

Andrews’ testimony that the defendant had received an

inheritance from his mother was at best a tangential

issue and entirely unrelated to the defendant’s theory

that he was not present in the basement at 17 Burton

Street when the victim was murdered. Accordingly, the

trial court’s ruling to preclude Andrews from testifying

did not rise to the level of a constitutional violation.

We nevertheless consider whether the trial court’s

decision to preclude Andrews’ testimony was improper

on purely evidentiary grounds. See State v. Saunders,

supra, 267 Conn. 386 (even though trial court’s preclusion of testimony was not violation of constitutional

magnitude, defendant was ‘‘entitled to reversal of his

conviction if he [could] establish that the exclusion was

both improper and harmful’’). In this respect, we note

that Russell initially testified in the state’s case-in-chief

thatthe defendant had money whenever she was around

him. The defendant later testified that, the year before

the murder, he had received $100,000 in cash and annuities from his mother’s estate, which ‘‘should have lasted

the rest of [his] life,’’ and that he had used the money

to buy drugs, clothing and jewelry. Defense counsel

gave no indication in his offer of proof that Andrews’

testimony would have differed in any essential respect

from that of the defendant. In fact, counsel’s offer of

proof suggested that Andrews’ testimony would have

been less detailed because there was no hint in the

proffer that Andrews would testify as to how much

money the defendant had received, the form in which

he had received it, and how he had been spending the

money prior to the victim’s murder. Accordingly, we

conclude that Andrews’ testimony would have been

merely cumulative and would not have affected the
jury’s determination regarding the defendant’s motivation and guilt.

The defendant nevertheless argues that Andrews

would have been a more ‘‘neutral’’ witness than the

defendant and that the jury would have found her testimony regarding the inheritance more credible. We agree

that Andrews would have corroborated the defendant’s

testimony on the issue of his inheritance and might

even have been more credible. The testimony regarding

the inheritance, however, was not disputed by the parties, and, as previously discussed, was not a central

issue in the case, because it was completely unrelated

to his defense that he was not present at the crime

scene. Accordingly, the trial court did not abuse its

discretion in precluding Andrews’ testimony.

II

The defendant next claims that he was deprived of

his due process right to a fair trial due to a pattern of

prosecutorial impropriety. He specifically claims that

the prosecutor engaged in vitriolic and improper questioning during cross-examination and that he viciously

attacked the defendant, argued facts not in evidence,

appealed to the jurors’ emotions, and denigrated the

defendant’s credibility during closing argument. The

defendant concedes that he did not preserve this claim

at trial and now seeks review under State v. Golding,

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

responds that the defendant has failed to show the

existence of any prosecutorial impropriety and that, to

the extent any improprieties occurred, the defendant

has failed to establish that they resulted in a deprivation

of his due process rights. We agree with the state that

there was no prosecutorial impropriety.

‘‘[T]he touchstone of due process analysis in cases

of alleged prosecutorial [impropriety] is the fairness of

the trial, and not the culpability of the prosecutor. . . .

The issue is whether the prosecutor’s conduct so

infected the trial with unfairness as to make the

resulting conviction a denial of due process. . . . In

determining whether the defendant was denied a fair

trial [by virtue of prosecutorial impropriety] we must

view the prosecutor’s comments in the context of the

entire trial.’’ (Internal quotation marks omitted.) State

v. Stevenson, 269 Conn. 563, 571, 849 A.2d 626 (2004).

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

we engage in a two step analytical process. The two

steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether

that [impropriety] deprived [the] defendant of his due

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

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

caused or contributed to a due process violation is a

separate and distinct question . . . .’’ (Internal quota-
tion marks omitted.) Id., 572.

‘‘[I]n cases involving incidents of prosecutorial

[impropriety] that were not objected to at trial . . . it

is unnecessary for the defendant to seek to prevail

under the specific requirements of [Golding], and, similarly, it is unnecessary for a reviewing court to apply

the four-pronged Golding test. The reason for this is

that the touchstone for appellate review of claims of

prosecutorial [impropriety] is a determination of

whether the defendant was deprived of his right to

a fair trial, and this determination must involve the

application of the factors set [forth] by this court in

State v. Williams, 204 Conn. 523, 540, 529 A.2d 653

(1987). As we stated in that case: In determining

whether prosecutorial [impropriety] was so serious as

to amount to a denial of due process, this court, in

conformity with courts in other jurisdictions, has

focused on several factors. Among them are 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. . . .

‘‘Regardless of whether the defendant has objected

to an . . . [impropriety], a reviewing court must apply

the Williams factors to the entire trial, because there

is no way to determine whether the defendant was

deprived of his right to a fair trial unless the [impropriety] is viewed in light of the entire trial. The application

of the Williams factors, therefore, is identical to the

third and fourth prongs of Golding, namely, whether

the constitutional violation exists, and whether it was

harmful. . . . [Thus], following a determination that

prosecutorial [impropriety] has occurred, regardless of

whether it was objected to, an appellate court must

apply the Williams factors to the entire trial.

‘‘This does not mean, however, that the absence of

an objection at trial does not play a significant role in

the application of the Williams factors. To the contrary,

the determination of whether a new trial or proceeding

is warranted depends, in part, on whether defense counsel has made a timely objection to any . . . [prosecutorial impropriety]. When defense counsel does not

object, request a curative instruction or move for a

mistrial, he presumably does not view the alleged

impropriety as prejudicial enough to [seriously] jeopardize . . . the defendant’s right to a fair trial. . . .

Moreover, ordinarily, when a defendant who raises an

objection to the allegedly improper remarks of a prosecutor elects to pursue one remedy at trial instead of

another, he will not be permitted to claim on appeal

that the remedy he pursued was insufficient. . . . In

other words, the fact that defense counsel did not object

to one or more . . . [improprieties] must be consid-
ered in determining whether and to what extent the

[impropriety] contributed to depriving the defendant of

a fairtrial and whether, therefore,reversal is warranted.

‘‘We emphasize the responsibility of defense counsel,

at the very least, to object to perceived prosecutorial

improprieties as they occur at trial, and we continue

to adhere to the well established maxim that defense

counsel’s failure to object to the prosecutor’s argument

when it was made suggests that defense counsel did

not believe that it was unfair in light of the record of

the case at the time. . . . Moreover . . . defense

counsel may elect not to object to arguments that he

or she deems marginally objectionable for tactical reasons, namely, because he or she does not want to draw

the jury’s attention to it or because he or she wants to

later refute that argument. . . . Accordingly, we

emphasize that counsel’s failure to object at trial, while

not by itself fatal to a defendant’s claim, frequently

will indicate on appellate review that the challenged

comments do notrise to the magnitude of constitutional

error . . . . Put differently . . . prosecutorial [impropriety] claims [are] not intended to provide an avenue

for the tactical sandbagging of our trial courts but,

rather, to address gross prosecutorial improprieties that

. . . have deprived a criminal defendant of his right

to a fair trial.’’ (Citations omitted; emphasis omitted;

footnotes omitted; internal quotation marks omitted.)

State v. Stevenson, supra, 269 Conn. 572–76.

With these principles in mind, we first consider

whether the prosecutor in the present case committed

the alleged improprieties. If we determine that he did,

we will then conduct a separate analysis to determine

whether the improprieties deprived the defendant of

his right to a fair trial.

A

We begin with the alleged improprieties that occurred

during the prosecutor’s cross-examination of the defendant. The defendant claims that the prosecutor engaged

in aggressive, derogatory and sarcastic questioning

when he (1) asked the defendant if he had been arrested

‘‘[p]retty much everywhere you’ve been,’’ (2) queried,

with respect to the detectives who questioned him at

the police station, ‘‘[d]id you think, all of a sudden, boy,

these are a good bunch of guys, I think I’ll, you know,

hang out with them, do what they want me to do,’’ (3)

stated, concerning the defendant’s medication, ‘‘[i]t’s

not like—correct me if I’m wrong—you’re not out of

your mind crazy, you don’t know what’s going on,right,’’

(4) asked, regarding the defendant’s need for drugs, ‘‘if

you don’t have the drugs, are the demons screaming at

you,’’ (5) described the defendant’s portrayal of Russell

as a ‘‘scorn[ed]’’ woman, (6) sarcastically asked, ‘‘did

you get the sense from [Russell’s] testifying that she

was trying to seduce you at that point when she was

up there crying for hours in a row, refusing to look
over at you,’’ and (7) denigrated and mocked the defendant when he said, ‘‘[c]ome on’’ and ‘‘did it pop a light

bulb in your head . . . ?’’ The defendant argues that

the foregoing comments were inflammatory, hostile and

designed to arouse the emotions, passions, and prejudices of the jurors, thus leading them to conclude that

the defendant was telling a ridiculous story, a theme

later stressed by the prosecutor during his closing

argument.

The state replies that the defendant has merely

lumped together a number of unpreserved evidentiary

challenges and labeled them as prosecutorial improprieties for the purpose of obtaining appellate review that

otherwise would be unavailable. The state also argues

that, when considered in context, none of the prosecutor’s questions and comments during his cross-examination of the defendant was improper. We agree with

the state.

It is well established that a prosecutor may not appeal

to the emotions, passions and prejudices of the jurors

by denigrating a witness through the frequent and gratuitous use of sarcasm. See, e.g., State v. Wilson, 308

Conn. 412, 436, 64 A.3d 91 (2013); see also State v.

Salamon, 287 Conn. 509, 564, 949 A.2d 1092 (2008)

(‘‘gratuitous use of sarcasm and repeated questioning of

[the witness] as to matters that he already had explored

thoroughly with [the witness]’’ improperly conveyed

prosecutor’s own belief that witness was not credible);

State v. Rizzo, 266 Conn. 171, 263, 833 A.2d 363 (2003)

(use of needless sarcasm during cross-examination of

defense witness ‘‘[may call on] the jurors’ feelings of

disdain, and [may send] them the message that the use

of sarcasm, rather than reasoned and moral judgment,

as a method of argument [is] permissible and appropriate for them to use’’). We also have stated, however,

that defense counsel’s failure to object to allegedly sarcastic and denigrating comments and questions by the

prosecutor during cross-examination, as in the present

case, suggests that counsel did not believe the alleged

improprieties were unfair in light of the record at that

time. E.g., State v. Medrano, 308 Conn. 604, 621, 65

A.3d 503 (2013). Accordingly, we consider each alleged

impropriety in the context in which it occurred, with

the challenged language italicized. In performing this

task, we are constrained by our inability to assess the

tone and body language of the prosecutor and the defendant, and the limitations necessarily imposed by our

reliance on the cold, printed record.

The first alleged impropriety occurred during an

exchange between the prosecutor and the defendant

concerning the defendant’s prior arrests.5 After the

prosecutor elicited testimony from the defendant that

he had been arrested dozens of times in Connecticut,

Georgia and New Hampshire, the prosecutor summarized his testimony by asking: ‘‘Pretty much everywhere
you’ve been, right?’’ (Emphasis added.) The trial court

overruled defense counsel’s objection to the question

as a mischaracterization of the evidence because ‘‘the

question was whether he’s been arrested everywhere

he’s been. He can answer that.’’ The defendant thereafter responded: ‘‘No. I’ve been a whole lot of places

that I ain’t been arrested.’’

We conclude that the prosecutor’s question was not

improper because it was intended to summarize the

defendant’s preceding acknowledgment during his testimony that he had been arrested ‘‘dozens and dozens’’

of times in Connecticut and two other states, thus suggesting that he had been arrested in many different

places. The defendant also was given an opportunity

to respond and, in so doing, denied that he had been

arrested ‘‘[p]retty much everywhere . . . .’’ Accordingly, although the question, viewed in isolation, might

appearto be sarcastic, itrepresented a reasonable inference to be drawn from the defendant’s prior testimony

regarding the number and location of his many prior

arrests.

The second alleged impropriety occurred during an

exchange between the prosecutor and the defendant

concerning the defendant’s attitude toward the detectives who questioned him on the second day of his

interrogation, during which he signed a written statement in which he confessed to his involvement in the

crime but that he repudiated at trial on the ground that

he had not understood its contents.6 Afterthe defendant

testified that the detectives had ‘‘[p]unched [him] up,’’

‘‘[got him] drunk,’’ and then turned friendly and ‘‘buddy,

buddy,’’ thus implying they were trying to cajole him

into signing the statement after physically beating him,

the prosecutor asked: ‘‘Did you think, all of a sudden,

boy, these are a good bunch of guys, I think I’ll, you

know, hang out with them, do what they want me to

do?’’ (Emphasis added.) The defendant responded that

he had signed the statement so thatthe detectives would

leave him alone.

We conclude that the prosecutor’s question was not

improper because its clear and obvious purpose was

to clarify the defendant’s reasons for signing the statement. To the extent the defendant also suggests that the

question was sarcastic because of its informal language,

the language was consistent with the language that the

defendant used in his prior testimony when stating that

the detectives had ‘‘[p]unched me up, then [got] me

drunk and [made] friends with me . . . everybody was

buddy, buddy.’’

The third alleged impropriety occurred during an

exchange between the prosecutor and the defendant

regarding the defendant’s state of mind and his ability

to understand what he was reading when the detectives

presented him with the written statement, which was

typed by one of the detectives while the defendant was
telling them what had happened on the night of March

20, 1999.7 The prosecutor asked the defendant if his

need for prescription medication had affected his ability

to understand what was going on during the interrogation, to which the defendant responded that he did

understand. The prosecutor then asked: ‘‘It’s not like—

correct me if I’m wrong—you’re not out of your mind

crazy, you don’t know what’s going on, right’’; (emphasis added); to which the defendant responded, ‘‘[n]o.’’

We conclude that the prosecutor’s reference to the

fact that the defendant was not ‘‘out of [his] mind crazy’’

when not on his medication was not improper. The

prosecutor’s language was colloquial and perhaps needlessly colorful but was not inappropriate because it

did not describe the defendant as crazy but, rather,

emphasized the defendant’s prior testimony that he was

in full possession of his faculties and thus understood

what he was doing when he signed the written statement.

The fourth alleged impropriety occurred during an

exchange between the prosecutor and the defendant

regarding the defendant’s reasons for using drugs and

the effect of his addiction on his family relationships.8

After the defendant testified that he started using drugs

to ‘‘get rid of’’ and ‘‘quiet . . . down’’ the demons in his

head, which were caused by violent childhood beatings,

the prosecutor asked: ‘‘So, if you don’t have the drugs,

are the demons screaming at you’’; (emphasis added);

to which the defendant responded that the demons

caused him to avoid people as much as possible, even

when he was using drugs, because being around people

frightened him.

We conclude that the prosecutor’s question was not

improper because it was intended to elicit information

regarding the cause of the defendant’s addiction and

the effect of drugs on his state of mind. Insofar as

the prosecutor referred to demons screaming at the

defendant when he was not on drugs, his use of this

language was consistent with the defendant’s own reference to demons in his head when he was describing

the cause of his addiction.

The fifth and sixth alleged improprieties occurred

during an exchange between the prosecutor and the

defendant regarding the defendant’s attitude toward

Russell and her testimony at trial.9

In probing whether

the defendant’s relationship with Russell before the

crime had been contentious, the defendant testified that

he did not think she had a grudge against him but that

he had rebuffed her attempts to ‘‘seduce’’ him with

drugs when he had met her a couple of times on the

street because he never wanted anything to do with

her. Thereafter, when the prosecutor asked whether

Russell would have falsely accused him of being present

at the crime scene, the defendant responded that he

did not know because ‘‘[a] woman scorn[ed] could do
anything.’’ The prosecutor then asked: ‘‘Now she’s

scorn[ed]?’’ (Emphasis added.) The defendant repeated

that he had rejected Russell’s attempts to seduce him

with heroin because he did not use heroin, to which

the prosecutor responded: ‘‘And did you get the sense

from her testifying that she was trying to seduce you

at that point when she was up there crying for hours in

a row, refusing to look over at you?’’(Emphasis added.)

We conclude that the prosecutor’s first question

regarding the defendant’s description of Russell as a

‘‘scorn[ed]’’ woman was not improper. The question

repeated the defendant’s own description of Russell as

‘‘[a] woman scorn[ed]’’ and was intended to emphasize

the incongruity of his initial testimony that he believed

Russell bore no grudge against him and his later suggestion that she might have falsely accused him because

he had rejected her attempts to seduce him with drugs.

We also conclude that the prosecutor’s second question was not improper. There is no doubt that the question was confusing. The fact that a question is confusing,

however, does not mean it is improper, even if the

prosecutortook the concept of seduction out of context

and used it inexplicably to describe the effect of Russell’s tearful testimony on the defendant at trial.

The seventh and eighth alleged improprieties

occurred during an exchange between the prosecutor

and the defendant regarding the defendant’s purported

lack of knowledge as to the contents of the written

statement he signed on the second day of his interrogation.10 In discussing the defendant’s numerous past

arrests and interactions with the police, the prosecutor

repeatedly attacked the defendant’s vociferous denials

that he never had been questioned and asked to sign a

written statement following any of his other arrests.

The prosecutor finally stated: ‘‘Come on. You said that

[one of the police officers], the good guy, had brought

you down and questioned you about this case in the

past’’; (emphasis added); in response to which the

defendant repeated that he had not been asked to sign

anything in the past. The prosecutor nevertheless continued to press the defendant on this issue and finally

inquired about whether the defendant had been surprised at the length of the written statement and if he

had wondered why it was so long when he initially

saw it. The defendant replied that he had signed the

statement without reading it because he wanted to go

back to his jail cell. The prosecutor, however, continued

to push the defendant for a more specific answer by

asking: ‘‘Did it cause you any concern or did it pop a

light bulb in your head, boy, there’s a lot of typed

up words on here; I wonder why there’s so many?’’

(Emphasis added.) The defendant responded that there

were a lot of typed words in the newspaper and that

they also meant nothing.

We conclude that the prosecutor’s use of the term,
‘‘[c]ome on,’’ and his reference to a light bulb ‘‘pop-

[ping]’’ in the defendant’s head were not improper. The

prosecutor used the term ‘‘[c]ome on’’ in an effort to

encourage the defendant to testify truthfully as to his

prior experience in giving, or understanding the purpose of, written statements to the police, immediately

after the defendant testified: ‘‘I’ve never had to sign a

statement, ever, never, never, never. I [have] never been

questioned by detectives, never, ever, ever, never. Is

that enough nevers for you? Never. . . . I can tell you

never—I [have] never been arrested. I [have] never been

questioned. [I] never went through this. . . . I never

went through this. I never did this before.’’ Given the

defendant’s repeated and emphatic denials, the prosecutor’s attempt to ensure that the defendant was being

truthful by saying, ‘‘[c]ome on,’’ was not inappropriate.

Similarly, asking the defendant whether the length

of the written statement ‘‘pop[ped] a light bulb’’ in his

head for the purpose of pointing out its potential significance was an appropriate rhetorical device that is commonly used in conversation to describe a sudden understanding or thought. Accordingly, we conclude that the

foregoing questions were not improper.

B

We next address the improprieties that allegedly

occurred during the prosecutor’s closing argument. The

defendant claims that the prosecutor improperly (1)

denigrated the defendant and the manner in which he

was arguing his case, (2) made several blatant appeals

to the jurors’ emotions, (3) argued facts not in evidence,

(4) expressed his belief to the jury that the defendant

was guilty, and (5) made two misleading, burden shifting arguments. The state responds that, when understood in their proper context, none of the comments

to which the defendant refers was improper. We agree

with the state.

‘‘As we previously have recognized, prosecutorial

[impropriety] of a constitutional magnitude can occur

in the course of closing arguments. . . . When making

closing arguments to the jury, [however] [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. . . . Moreover, [i]t does not follow . . . that

every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . .

‘‘Nevertheless, the prosecutor has a heightened duty

to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.

[The prosecutor] is not only an officer of the court,

like every attorney, but is also a high public officer,

representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.

. . . By reason of his office, he usually exercises great

influence upon jurors. His conduct and language in the

trial of cases in which human life or liberty [is] at stake

should be forceful, but fair, because he represents the

public interest, which demands no victim and asks no

conviction through the aid of passion, prejudice, or

resentment. If the accused [is] guilty, he should [nonetheless] be convicted only after a fair trial, conducted

strictly according to the sound and well-established

rules which the laws prescribe. While the privilege of

counsel in addressing the jury should not be too closely

narrowed or unduly hampered, it must never be used

as a license to state, or to comment upon, or to suggest

an inference from, facts not in evidence, or to present

matters which the jury ha[s] no right to consider. . . .

[W]hile [the prosecutor] may strike hard blows, he is

not at liberty to strike foul ones. It is as much his duty

to refrain from improper methods calculated to produce

a wrongful conviction as it is to use every legitimate

means to bring about a just one. . . .

‘‘Furthermore, the prosecutor may not express his

own opinion, directly or indirectly, as to the credibility

of the witnesses. . . . Nor should a prosecutor express

his opinion, directly or indirectly, as to the guilt of the

defendant. . . . Such expressions of personal opinion

are a form of unsworn and unchecked testimony, and

are particularly difficult for the jury to ignore because

of the prosecutor’s special position. . . . Moreover,

because the jury is aware that the prosecutor has prepared and presented the case and consequently, may

have access to matters not in evidence . . . it is likely

to infer that such matters precipitated the personal

opinions.’’ (Citations omitted; internal quotation marks

omitted.) State v. Colon, 272 Conn. 106, 237–38, 864

A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct.

102, 163 L. Ed. 2d 116 (2005).

1

The defendant first claims that the prosecutor

improperly denigrated him personally and his theory

of the case by (1) calling him a ‘‘hardened criminal,’’

(2) stating that his testimony disavowing any knowledge

of what was in the written statement ‘‘just doesn’t make

any sense,’’ (3) arguing that the defense would have

challenged a video-recorded statement from the defendant, which the defense suggested would have been

preferable, to the same extent it challenged the validity

of the defendant’s written statement, (4) accusing the

defense of focusing on insignificant evidence, and

(5) engaging in unnecessary sarcasm by referring to the

defendant’s testimony that he had been given alcoholic
beverages during his interrogation as ‘‘happy hour at

the police department.’’

We begin with the prosecutor’s characterization of

the defendant as a ‘‘hardened criminal’’ and his description of the defendant’s testimony that he did not know

what was in the written statement as not making any

sense.11 The ‘‘hardened criminal’’ comment was followed by the prosecutor’s observation that the defendant had ‘‘been in and out of . . . jail his entire life’’

and that he did not condemn the defendant as a ‘‘bad

man’’ for his extensive criminal history but merely

wanted the jury to think about how the defendant’s

past experience in jail would have affected his interactions with the police in the present case. The prosecutor

argued that it did not make any sense, in light of the

defendant’s dozens of arrests and felony convictions,

and his view of the police as manipulative and violent,

to believe the defendant’s testimony that he did not

read, and did not know the contents of, the lengthy,

written statement the police had given him to sign,

implicating him in the victim’s murder.

We conclude that the prosecutor’s argument was not

denigrating and sarcastic but fairly described the defendant in language reflecting his criminal past and correctly pointed out the logical inconsistency between

his testimony regarding his extensive criminal history

and his testimony that he did not know what was in the

written statement he had signed. See State v. Stevenson,

supra, 269 Conn. 584 (prosecutor’s remark during closing argument describing defendant’s explanation as

‘‘totally unbelievable’’ was ‘‘a comment on the evidence

presented at trial, and it posited a reasonable inference

that the jury itself could have drawn’’ [internal quotation

marks omitted]). Accordingly, the prosecutor’s argument was not improper.

We next considerthe prosecutor’s allegedly improper

comment during rebuttal argument that the defense

would have criticized the validity of the defendant’s

written statement even if it had been video-recorded.

The prosecutor argued: ‘‘And now [defense counsel]

talks about this being the age of technology, you know,

[and that a confession] should be recorded, and that we

wouldn’t be here if they had recorded the confession.

Really? So, you wouldn’t say that we had stopped the

video camera at a particular time, and restarted it,

and you wouldn’t say that we turned it off and whacked

the defendant around, or that we did all these other

things, or that we had photoshopped it, or added stuff

to it? You have the evidence that’s before you.’’(Emphasis added.)

We first note that moments before the prosecutor

made this argument, defense counsel argued that the

Waterbury Police Department had the capacity to videorecord interviews with arrested persons to eliminate

any future confusion as to how a statement had been
obtained and that, if there had been a video-recorded

statement in the present case, ‘‘we wouldn’t even be

playing around with this.’’12 Accordingly, the prosecutor’s argument was intended to respond to defense

counsel’s remarks by pointing out that the use of such

technology would not necessarily guarantee certainty

and eliminate confusion since claims of photoshopping,

i.e., the manipulation of a photograph, or turning the

video recorder on and off could still be made to impugn

the integrity of a recording. We therefore conclude that

the prosecutor’s argument was not improper.

The next alleged impropriety was the prosecutor’s

comment that the defense had focused on insignificant

matters to raise reasonable doubt in the jurors’ minds.13

After defense counsel argued that the jury should consider as a ‘‘key piece of evidence’’ the fact that nothing

on the victim’s body, including a hair on her face, could

be traced to the defendant, the prosecutor argued in

rebuttal that the state did not have to make a perfect

case. In support of this point, he specifically argued

that defense counsel’s reference to the lack of forensic

evidence connecting the defendant to a hair on the

victim’s face was irrelevant and should not contribute

to the jury’s consideration of reasonable doubt. He specifically urged the jury to consider that ‘‘[t]here is not

one shred of evidence, not one shred of evidence, that

that hair has any importance at all in this case, but

what the defense attorney wants you to do is say, ‘that’s

reasonable doubt.’ That’s not reasonable doubt. There

is no evidence about what it was.’’ (Emphasis added.)

We conclude that the prosecutor’s argument was not

improper. Defense counsel first argued that there was

no forensic evidence, including the hair found on the

victim’s face, connecting the defendant to the victim.

The defense thus opened the door for the prosecutor

to argue in rebuttal that the lack of evidence connecting

the hair to the defendant was not only unimportant but

insufficient to support a finding of reasonable doubt.

Accordingly, the prosecutor did not improperly ‘‘denigrate’’ the defendant’s theory of the case but properly

challenged the significance of the evidence on which

the defense had relied.

We finally consider the prosecutor’s reference to

‘‘happy hour at the police department’’ in response to

defense counsel’s argument that the defendant did not

understand the written statement he signed because

his request for his prescription medication was denied

and he thus was mentally impaired. The prosecutor

argued: ‘‘[The defendant] could remember even without

this medication all of the details of what happened

in the police department, and he was supposedly—

apparently it was happy hour at the police department.

I mean, you know, you can get rum, you can get tequila,

you can get long-neck [beers] and cups of brandy, so

drunk that he couldn’t control himself in terms of not
signing this statement, but [he] can remember every

single detail, didn’t have his medication, after [e]ffects

of crack cocaine, and drunk, yetremembers every single

detail of what happened. Does that make any sense?

Absolutely not.’’ (Emphasis added.)

The defendant refers to the ‘‘happy hour’’ comment

as unnecessarily sarcastic. We disagree. Although the

prosecutor’s reference to ‘‘happy hour at the police

department’’ was colorful, prosecutors may use rhetorical devices to focus the jury’s attention on points they

want to emphasize during their argument. In this case,

the ‘‘happy hour’’ comment was likely intended to demonstrate the inconsistency between the defendant’s

assertion that he understood everything that had happened during the interrogation, even afterthe detectives

had served him liquor and tried to get him drunk, and

his assertion that he had not understood what had happened during the interrogation because of a mental

impairment caused by his need for medication. It also

very likely was intended to suggest that the defendant’s

testimony that he had been given a variety of alcoholic

beverages during the interrogation was absurd. See,

e.g., State v. Coney, 266 Conn. 787, 812 n.23, 835 A.2d

977 (2003) (‘‘[a]lthough prosecutors are bound by constitutional constraints and the restraints of adversarial

propriety, they are not shackled by the chains of inadequate advocacy’’). Accordingly, the comment was not

improper.

2

The defendant next claims that the prosecutor

improperly appealed to the jurors’ emotions by describing the case as ‘‘a brutal, vicious, drug-filled homicide,

about a young woman who lost her life at the squeezing

hands of the defendant, who wanted to fuel his lifelong

addition to crack cocaine,’’ and by characterizing Russell as ‘‘trembling, trembling, physically trembling, crying uncontrollably almost, during her testimony . . . .’’

We disagree.

The prosecutor’s description of the case occurred at

the start of his closing argument, in order to focus

the jury’s attention on the brutality of the murder. The

prosecutor argued: ‘‘Let’s keep focused on what this

case is about. This case is about a brutal, vicious,

drug-filled homicide, about a young woman who lost

her life at the squeezing hands of the defendant, who

wanted to fuel his lifelong addiction to crack cocaine.

That’s what this case is about.’’ (Emphasis added.)

We conclude that the foregoing comment was not

improper because it was an accurate description of

the case. A prosecutor is not precluded from using

descriptive language that portrays the nature and enormity of the crime when supported by the evidence.

Thus, to the extent the prosecutor’s language appealed

to the jurors’ emotions, it did so because of the nature
of the crime and not because of the terminology the

prosecutor used to get his point across. See, e.g., State

v. Reynolds, 264 Conn. 1, 187, 836 A.2d 224 (2003) (prosecutor may point out egregious nature of conduct under

consideration), cert. denied, 541 U.S. 908, 124 S. Ct.

1614, 158 L. Ed. 2d 254 (2004).

With respect to Russell, the prosecutor argued in part

that, despite her admission that she was a drug user

with many personal issues, hertestimony was truthful.14

After describing her drug habit and some of her other

personal problems, the prosecutor urged the jury to

credit her testimony as authentic by arguing that ‘‘[t]he

fact that she would come in and say those things, which

are so embarrassing to her, and that she would be

trembling, trembling, physically trembling, crying

uncontrollably almost, during her testimony, supports

the fact that she was being truthful. And her testimony

corroborates the police testimony because much of

what she says happens is what the police say they heard

from the mouth of the defendant. And look to her

demeanor on the stand.’’ (Emphasis added.)

We conclude that the prosecutor’s reference to Russell as physically trembling and crying uncontrollably

during her testimony was not improper. It was intended

to point out certain physical attributes Russell displayed

as a witness that were indicative of her authenticity

and credibility. Shortly before he made the comments,

the prosecutor asked the jury to observe the witnesses

carefully: ‘‘Now, one of the most powerful tools that

you have in your arsenal of common sense is to observe

witnesses on the stand. You all are seated in such a

fashion that you are close to the witness stand. You

can watch how people act. You can watch how they

respond to questions. You can watch the expressions

on their face[s]. And I think it’s not hard, based on this

evidence, to remember . . . Russell’s reaction when

she testified in this case. Her actions physically on the

witness stand were consistent with someone who

was terrified.’’

‘‘Our law is well settled that it is a jury’s duty to

determine the credibility of witnesses and to do so

by observing firsthand their conduct, demeanor and

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

Gilberto L., 292 Conn. 226, 247, 972 A.2d 205 (2009).

Accordingly, we conclude that the prosecutor’s reference to Russell’s trembling and crying on the witness

stand was not improper and did not unduly appeal to

the jurors’ emotions; rather, it was an accurate description of her demeanor that was intended to persuade

the jury that she was a credible witness.

3

The defendant next claims that the prosecutor argued

facts not in evidence when he stated, in discussing the

crime scene, that the ‘‘details don’t line up perfectly
like they do on TV’’ and when he argued, with respect

to the methods used by the police for obtaining information, that it takes more effort to obtain information

from someone who has been through the system. We

disagree.

The prosecutor argued on rebuttal that the ‘‘details

don’t line up perfectly like they do on TV’’ in discussing

whether Russell’s testimony regarding what had happened in the basement was consistent with the testimony of the defendant.15 The prosecutor then asked

the jury to use common sense when comparing their

testimony: ‘‘And, you know, all this crime scene stuff.

People watch too much [Crime Scene Investigation

(CSI)]. If things—details don’t line up perfectly like

they do on TV, where they find a twig, or a hair, and,

all of [a] sudden, the whole case is busted wide open.

This is a homicide from [twelve, thirteen] years ago.

Use your common sense and look at the major details

that all do line up.’’ (Emphasis added.)

We conclude that the prosecutor’s comments comparing what ordinarily happens in a popular television

crime show, in which the evidence may appear to be

consistent and point to a specific result, with real life

situations in which the evidence may not be consistent

were not improper because he did not introduce new

facts that would have affected the jurors’ determination

of guilt. The comparison merely was intended to advise

the jurors that scripted television dramas do not necessarily reflect real life situations and that the jurors

should not expect the testimony of different witnesses

to be in perfect accord.

With respect to the prosecutor’s suggestion on rebuttal that it may take more effort to obtain information

from persons who have ‘‘been through the system’’ than

from persons who have not, he did not make the suggestion in the form of a statement of fact but in the form

of the following question: ‘‘And think about just, you

know, use your everyday common sense again. Think

about the evolution of a statement. How is it that the

police get information from people? I’m sure—I’m sure

that there are people who go in without the police even

knowing they’ve committed a crime, and they go to the

front desk and say, ‘I did a horrible thing. I have to tell

you, I killed my wife. I got drunk and I ran over somebody on the highway. I’m here. Take me. I confess.’

That happens. But, but—somebody who’s been through

the system all that time, don’t you think it takes the

police a little bit of work to get it out of them? Hey,

look. We got . . . Russell. She told us what happened.

We got other witnesses who put you there. You get it

piece by piece. . . . I mean, that’s just human behavior

[to initially deny the truth]. If you are in a position

where you don’t want to tell that you’ve done something

bad, you try to keep it a secret until you know you can’t

keep it a secret anymore.’’ (Emphasis added.)
We conclude that the prosecutor’s suggestion that it

may take more time to obtain information from someone who has ‘‘been through the system’’ was not offered

as an evidentiary fact to be considered by the jury but

as a way to view Russell’s testimony in determining

whether she was a credible witness. Accordingly, the

suggestion did not rise to the level of improper argument.

4

The defendant next claims that the prosecutor

improperly expressed to the jurors his own belief that

the defendant was guilty when he stated that ‘‘one of

the things that prosecutors sometimes get in trouble

[for] in closing arguments is saying what they believe,

okay. My function here is not to convince you that I

believe the defendant is guilty. What my opinion is does

not matter . . . I’m not here to convince you that I

think he’s guilty.’’ We disagree.

It is true that the prosecutor stated two different

times in his closing argument that he was not trying to

convince the jurors that he believed the defendant was

guilty.16 His comments, however, although suggestive,

were not improper for two reasons. First, he never

stated his personal belief that the defendant was guilty

but only that his function was not to convince the jury

that he believed the defendant was guilty. Second, his

references to his own belief were accompanied by other

qualifying language indicating that what he believed did

not matter and that the jurors must decide whether the

defendant was guilty by relying on their common sense

and their capacity to critically evaluate the evidence.

Accordingly, the prosecutor’s insinuations regarding his

personal belief as to the defendant’s guilt were not

improper.

5

The defendant next claims that the prosecutor

improperly made two burden shifting arguments when

he stated, with respect to a hair found on the victim’s

face, that the defense had ‘‘access to the state forensic

lab, they can put on witnesses if they want to from the

lab,’’ and when he allegedly misstated the state’s burden

of proof by claiming that it did not have to prove the

moment of death.17 We disagree.

With respect to the first claim, the prosecutor

responded to defense counsel’s argument that ‘‘a key

piece of evidence’’ was the lack of anything on the

victim’s body, including a hair on her face, that could

be traced to the defendant, as follows: ‘‘There is not

one shred of evidence, not one shred of evidence, that

that hair has any importance at all in this case, but

what the defense attorney wants you to do is say, ‘that’s

reasonable doubt.’ That’s not reasonable doubt. There

is no evidence about what it was. They have access to

the state forensic lab, they can put on witnesses if they
want to from the lab. Don’t be led down that path.’’

(Emphasis added.)

It is well established that a party may comment on an

opposing party’s failure to call a witness during closing

argument. See, e.g., State v. Malave, 250 Conn. 722,

739–40, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170,

120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). In Malave,

we stated that ‘‘we do not prohibit counsel from making

appropriate comment, in closing arguments, about the

absence of a particular witness, insofar as that witness’

absence may reflect on the weakness of the opposing

party’s case. . . . [As] long as counsel does not directly

exhort the jury to draw an adverse inference by virtue of

the witness’ absence . . . [such comment is allowed].’’

(Footnote omitted.) Id., 739; see also State v. Clark, 48

Conn. App. 812, 831–32, 713 A.2d 834 (comment on

missing witnesses proper when prosecutor did not ask

jurors to draw adverse inference from absence of witnesses), cert. denied, 245 Conn. 921, 717 A.2d 238

(1998); State v. Ross, 18 Conn. App. 423, 432–33, 558

A.2d 1015 (1989) (prosecutor’s comment on absence of

witnesses constituted fair argument on weakness of

defendant’s case).

In the present case, we conclude that the prosecutor

did not ask the jury to draw an adverse inference from

the failure of the defense to call witnesses from the

forensic laboratory to give testimony on the hair, thus

misallocating the burden of proof, but argued instead

that there was no evidence to support defense counsel’s

claim as to the significance of the hair, which the

defense could have adduced by calling witnesses from

the state forensic laboratory. Accordingly, the prosecutor’s comments were directed to the weakness of the

defense’s theory that the hair was a key element in the

case because the defense had produced no evidence

regarding its significance.

With respect to the second burden shifting claim, the

prosecutor argued: ‘‘I don’t have to prove the moment

of death, and I don’t have to prove that he’s the one

[who] inflicted the fatal blow. As to the felony murder

count, all I have to prove is that these guys were in on

a robbery trying to get that crack cocaine, and, as a

result of that robbery, is that she ended up dead. That’s

it.’’ (Emphasis added.)

We conclude that the prosecutor’s comment that the

state did not have to prove the moment of death was a

correct statement of the law. The felony murder statute

provides in relevant part: ‘‘A person is guilty of murder

when, acting either alone or with one or more persons,

he commits or attempts to commit robbery . . . and,

in the course of and in furtherance of such crime or of

flight therefrom, he, or another participant, if any,

causes the death of a person other than one of the

participants . . . .’’ General Statutes § 53a-54c. There

is nothing in the statute that requires the state to prove
the moment of death. Accordingly, the prosecutor did

not improperly shift the burden of proof to the defendant when he made this comment.

In sum, having determined that the defendant’s

claims of prosecutorial impropriety during cross-examination and closing argument have no merit, we conclude that there is no need to consider whether the

defendant was deprived of his right to a fair trial under

the second step of the two step analytical process for

claims of prosecutorial impropriety.

III

The defendant next claims that the state improperly

relied on a different theory in this case than in its case

against Smith, one of the alleged coassailants, when it

charged the defendant with felony murder based on

the predicate felony of attempted robbery but charged

Smith with felony murder based on the predicate felony

of attempted robbery or sexual assault. The defendant

thus claims that his conviction was fundamentally

unfair and his due process rights were violated under

the fourteenth amendment to the United States constitution.

The defendant relies principally on Smith v. Groose,

205 F.3d 1045 (8th Cir.), cert. denied sub nom. Gammon

v. Smith, 531 U.S. 985, 121 S. Ct. 441, 148 L. Ed. 2d 446

(2000), in which the Eighth Circuit Court of Appeals

concluded that a prosecutor’s ‘‘use of inherently factually contradictory theories violates the principles of due

process.’’ Id., 1052; see also United States v. Higgs, 353

F.3d 281, 326 (4th Cir. 2003). Although the defendant

concedes there is a split of authority on this issue; see,

e.g., United States v. Urso, 369 F. Supp. 2d 254, 263–64

(E.D.N.Y. 2005) (discussing conflicting authorities);

with no clear majority on either side, he argues that the

authorities holding that the presentation of inconsistent

theories violates due process are more persuasive and

appear to be more consistent with the general tenets

of Connecticut law.

We conclude that there is no need to address this

issue of first impression in Connecticut because the

defendant has failed to persuade us that the charges

and theories in the two cases are contradictory. See

State v. Colon, supra, 272 Conn. 244 (concluding that

defendant’s reliance on Smith v. Groose, supra, 205

F.3d 1045, was misplaced and avoiding consideration

of whether presentation of inconsistent theories violates due process because prosecutor‘‘was not pursuing

inherently factually contradictory theories, as the

defendant claim[ed]’’). In the present case, both the

defendant and Smith were charged with felony murder

based on the predicate felony of attempted robbery.

The fact that the felony murder charge in Smith’s case

also was based on the predicate felony of sexual assault

does not mean, however, that the charges against the
two men and the theories on which they were based

were inconsistent or contradictory. The attempted robbery and sexual assault that ended with the victim’s

murder were part of one continuous series of actions

by three different men. See part IV of this opinion.

Accordingly, the charges were complementary and

were based on the state’s evaluation of the evidence

indicating the nature and extent of each man’s participation in different aspects of the crimes against the victim.

IV

The defendant next claims that the evidence was

insufficient to support his conviction of felony murder.

He claims that, although the evidence established that

the victim died and that an attempted robbery occurred,

it also established that the victim was sexually

assaulted. Accordingly, it was incumbent on the state

to prove that the victim was killed in the course of and

in furtherance of the attempted robbery rather than the

sexual assault, which the state failed to do. The state

responds that the evidence was sufficient to support

the defendant’s conviction because the jury reasonably

could have found that the victim died after being manually strangled by the defendant and Smith and that her

death occurred within the period immediately before

or after commission of the attempted robbery. The state

also argues that the jury reasonably could have found,

on the basis of the evidence, that the homicidal act was

within the contemplation of the defendant and Smith

because both men took turns manually strangling the

victim in an attempt to force her to release the crack

cocaine. We agree with the state.

The following additional facts are relevant to our

resolution of this issue. On March 7, 2009, the day after

the defendant was arrested and charged with murder,

he gave oral and written statements to the police regarding his involvement in the crime. In his statements, the

defendant explained that, in 1999, he was a ‘‘runner’’

who referred drug purchasers to drug sellers and

received drugs in exchange for the referrals. In March,

1999, he brought the victim to a drug seller for a $100

purchase of crack cocaine and received $30 worth of

crack cocaine in return. He and the victim then went

to the basement of a house on Burton Street ‘‘where

lots of people go to get high.’’ Smith, who also was in

the basement, began to argue with the victim about

giving him some of her crack cocaine. Smith then hit

the victim in her face, which caused her to fall down.

Believing that the crack cocaine was in one of the victim’s hands, which was clenched, and knowing that

she had a fairly large quantity of the substance, the

defendant explained in his signed, written statement:

‘‘I thought to myself, why should [Smith] get all the

crack? . . . I want to get some for myself, so I went

at [the victim]. [The victim] was trying to wrestle out

from under [Smith], so I went up to the top of her head
and tried to control her head and get the crack. It was

a frenzy. I grabbed her by the neck and, at one point

to control her, I hit her in the head a couple [of] times.

When I had her by the neck, I was squeezing her neck,

trying to knock the wind out of her. After I had her

by the neck, my hands were mostly on her chest and

shoulders, but I did grab her neck a couple more times.

Then [Smith] started to choke her, and she started to

go out, by that, I mean, pass out. Then another guy

jumped [in], and he hit her in the stomach. At one point,

[Smith] got a metal thing. It was like some frame of a

table or chair and [he] started to swing at [the victim].

It hit both me and her. All the while, [Smith] was still

choking her. I was trying to grab at her hand to get the

crack, but she wouldn’t let go. When this was all going

on, I remember seeing [Russell] . . . . I’m not sure

when [Russell] left. The third guy started to pull [the

victim’s] pants down and then [Smith] pulled up her

shirt; this is when [the victim] let go of the crack, when

she tried to hold her pants so they wouldn’t get down.

[Smith] started to choke her again, and, eventually, she

went out. When I mean she went out, her eyes were

closed, she wasn’t fighting no more. I don’t know if she

was dead or not, but she wasn’t moving. I don’t even

know if she was breathing. The third guy was still pulling

her pants down. I knew this was bad, so I got up and

got out of there. I don’t know what happened to the

crack. I’m sure someone tried to get if off the floor.’’

The defendant later identified Smith and Daniel from

photographic arrays as the other two participants in

the incident.

‘‘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. . . .

‘‘On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether

there is a reasonable view of the evidence that supports

the jury’s verdict of guilty. . . .

‘‘Additionally, the jury must find every element

proven beyond a reasonable doubt in order to find the

defendant guilty of the charged offense, [but] each of

the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.

. . . In evaluating evidence, the [finder] of fact is not

required to accept as dispositive those inferences that

are consistent with the defendant’s innocence. . . .

The [finder of fact] may draw whatever inferences from

the evidence or facts established by the evidence it

deems to be reasonable and logical. . . .
‘‘Finally, [t]he trier offact may credit part of a witness’

testimony and reject other parts. . . . [W]e must defer

to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude . . . . This court cannot

substitute its own judgment for that of the jury if there

is sufficient evidence to support the jury’s verdict.’’

(Citations omitted; internal quotation marks omitted.)

State v. Brown, 299 Conn. 640, 646–48, 11 A.3d 663

(2011).

In order to sustain the conviction of felony murder,

the record must reflect that the state proved beyond a

reasonable doubt that the victim’s death was caused in

the course of and in furtherance of the predicate felony,

in this case, attempted robbery. See General Statutes

§ 53a-54c (‘‘[a] person is guilty of murder when, acting

either alone or with one or more persons, he commits

or attempts to commit robbery . . . and, in the course

of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death

of a person other than one of the participants’’). The

requirement that the death occur ‘‘in the course of’’

the underlying felony imposes a temporal limitation on

felony murder; State v. Ghere, 201 Conn. 289, 297, 513

A.2d 1226 (1986); whereas the requirement that the

death occur ‘‘in furtherance of’’ the underlying felony

imposes a causal limitation. State v. Young, 191 Conn.

636, 642, 469 A.2d 1189 (1983).

Applying these principles, we conclude that the victim’s murder was committed during the course of and

in furtherance of the predicate offense of attempted

robbery.18 With respect to the firstrequirement, we have

stated that, under General Statutes § 53a-133, ‘‘if the

use of force occurs during the continuous sequence of

events surrounding the taking or attempted taking, even

though some time immediately before or after, it is

considered to be ‘in the course of’ the robbery or the

attempted robbery within the meaning of the statute.’’

State v. Ghere, supra, 201 Conn. 297. We thus concluded

in Ghere, in which the state was required to prove that

force was used in an attempted robbery, that, even

though the use of force occurred after the demand for

money, the temporal requirement between the use of

force and the robbery had been met because the use

of force occurred during a continuous sequence of

events and the weapon was in the defendant’s hand

when the demand was made, even though the victim

initially had not seen it. Id., 292, 297–98.

Similarly, in the present case, Russell testified and

the defendant confessed that he attacked the victim

and started choking her after she refused to comply

with his demand for drugs or money. The defendant

further testified that Smith choked the victim during

the subsequent struggle, which the defendant described

as a ‘‘frenzy,’’ while the defendant tried to pry the crack
out of her clenched hand. Although the defendant stated

that Smith continued to choke the victim to death after

she released the crack in order to defend herself against

Daniel, there is no doubt that the foregoing events

occurred in a continuous, uninterrupted sequence over

a short period of time, there being no apparent break

between Smith’s initial argument with the victim and

her ultimate strangulation. We therefore conclude that

the temporal requirement is satisfied and that the victim’s death occurred in the course of the attempted

robbery.

We also conclude that her death occurred in furtherance of the attempted robbery. This court has stated

that ‘‘the phrase ‘in furtherance of’ was intended to

impose the requirement of a relationship between the

underlying felony and the homicide beyond that of mere

causation in fact, similar to the concept of proximate

cause in the law of torts. Primarily its purpose was to

limit the liability of a person whose accomplice in one

of the specified felonies has performed the homicidal

act to those circumstances which were within the contemplation of the confederates to the undertaking, just

as the liability of a principal for the acts of his servant

is similarly confined to the scope of the agency. All

who join in a common design to commit an unlawful

act, the natural and probable consequence of the execution of which involves the contingency of taking human

life, are responsible for a homicide committed by one

of them while acting in pursuance of, or in furtherance

of, the common design.’’ (Emphasis omitted; internal

quotation marks omitted.) State v. Young, supra, 191

Conn. 642.

In the present case, the defendant, Smith and Daniel

attacked the victim simultaneously to obtain her drugs

or money. The defendant’s written confession indicates

that he ‘‘went up to the top of her head and tried to

control her head and get the crack. It was a frenzy. I

grabbed her by the neck and, at one point to control

her, I hit her in the head a couple [of] times. When I

had her by the neck, I was squeezing her neck, trying

to knock the wind out of her. After I had her by the

neck, my hands were mostly on her chest and shoulders,

but I did grab her neck a couple more times. Then

[Smith] started to choke her, and she started to go out

. . . .’’ We therefore conclude that the victim’s death

occurred in furtherance of the attempted robbery.

The fact that the victim may have died while Smith

purportedly continued to choke her after she released

the crack cocaine does not mean that her death did not

occur in furtherance of the attempted robbery. The

choking was part of one continuous event that was

initiated and perpetuated by the victim’s refusal to surrender the crack cocaine and by her attackers’ determination to obtain it. Furthermore,the defendant had to be

aware that choking the victim likely would not merely
‘‘knock the wind out of her’’ but easily could result

in her death. Finally, the jury reasonably could have

believed that the sexual assault was intended to force

the victim to release the crack cocaine, which,

according to the defendant’s written statement, is

exactly what happened when Daniels started pulling

down her pants. Consequently, whether the victim’s

death occurred before or after she released the crack

cocaine is of no importance.

Viewing the evidence in the light most favorable to

sustaining the defendant’s conviction, we conclude that

the jury reasonably could have found that the victim’s

death occurred during the course of and in furtherance

of the attempted robbery, and, therefore, the evidence

was sufficient to support the jury’s finding that the

defendant was guilty of felony murder.

V

The defendant’s final claim is that the trial court

improperly denied his motion to suppress his oral and

written statements to the police on March 6 and 7, 2009,

in which he described his role in the events leading up

to the victim’s murder. The defendant argues that the

statements were obtained involuntarily because he was

under the influence of crack cocaine at the time of his

initial interrogation and because his statements on the

following day were made while he was suffering from

crack cocaine withdrawal and in need of his prescription medication. The state responds that the statements

were not made involuntarily because the trial court

made no findings regarding his apparent drowsiness on

the first day of interrogation, and, in any event, the

defendant made no inculpatory statements on that day.

With respect to the second day of interrogation, the

state argues that the trial court did not find credible

the defendant’s testimony that he was under the influence of crack cocaine when he made the oral and written statements that implicated him in the crime. We

agree with the state.

The following additional facts are relevant to our

resolution of this issue. On March 6, 2009, the day of

his arrest, the defendant was interviewed at the police

station by Detectives George Tirado and Timothy Jackson. After signing a written advisement and waiver of

his rights, the defendant repeatedly denied having any

knowledge of, or responsibility for, the victim’s murder.

He later admitted that he had been present at 17 Burton

Street when the crime was committed, but he denied

any involvement. The defendant eventually began to

nod off and fall asleep, telling the detectives that he

was feeling the effects of, and ‘‘coming down’’ from,

his prior consumption of crack cocaine. He then was

booked and taken to a holding cell for the evening.

Around 12 p.m. the following day, the defendant was

again interviewed by Tirado, who was accompanied by
Sergeant Michael Slavin. At that time, the defendant

signed another written advisement and waiver of rights.

After being confronted with information obtained by

the police from Russell and Daniel, the defendant

described his role in the crime, and provided and signed

a detailed, written statement after signing a second

written advisement and waiver of rights. Slavin testified

that the defendant did not ask for any medication during

the interrogation and that he had no apparent problem

seeing or reading any printed materials he was given.

Tirado further testified that the defendant ‘‘definitely

had . . . slept off his high’’ from the day before and

was able to respond to questions, did not appear confused, and did not ask for any medication. Slavin and

Tirado also testified that the defendant never was

threatened, yelled at, hit or otherwise mistreated during

the interrogation.

Thereafter, prior to commencement of the trial, the

defendantfiled a motion to suppress his oral and written

statements. The defendant claimed that the statements

were obtained illegally under the federal and state constitutions because they had not been made pursuant to

a knowing and intelligent waiver of his right against

self-incrimination and with the assistance of counsel.

Following a hearing, the court denied the motion to

suppress.

In an oralruling on the motion, the court firstreferred

to the defendant’s allegations, which he also made at

trial, that he gave his statement to the police only after

suffering physical abuse and assaultive behavior by

members of the Waterbury Police Department, the continued effects of withdrawal from crack cocaine,

reduced inhibitions arising from his need for prescribed

medication, and intoxication due to the consumption

of alcoholic beverages that the police had given to him.

The court nonetheless concluded that the statements

were voluntary. The court explained that the defendant

had been advised of his rights on March 6, the first day

of interrogation, and twice on March 7, and that he had

waived his rights before giving his written statement

on March 7. The court stated that the proper focus in

deciding whether a statement was voluntary was on the

conduct of the police and whether the record contained

evidence of threats, promises or other coercive or

deceptive measures. The court also stated that it had

considered the testimony of Tirado and Slavin, the

exhibits presented and the credibility of the witnesses,

and had determined, in light of the totality of the circumstances, that the defendant’s written statement was voluntary.

At trial, the defendant repudiated everything he had

disclosed in the written statement and denied being

present at the crime scene. Although he conceded that

he had been arrested and taken to the police station,

had signed a written statement waiving his rights, and
had spoken to the police, he denied all knowledge of,

or participation in, the victim’s murder. Consistent with

his testimony at the suppression hearing, he testified

that his denials caused Tirado to punch him several

times in the head and that, when he continued his denials, he was given liquor and beer. After spending the

night in the police station, he was interviewed again

the following day, at which time he continued to deny

knowledge of the victim’s murder. According to the

defendant, one of the detectives said that he knew the

defendant had not committed the crime but should tell

the police who did. When the defendant asked to call

his wife to bring him his prescription medication, he

was told that he could do so only after he revealed

what he knew about the crime. The defendant testified

that he eventually signed all of the papers he was given,

including the written statement, because he was told

to do so and wanted to get back to his jail cell. He

added that the police indicated which photographs to

select from the photographic arrays and that he had not

been given an opportunity to read any of the documents

before he was asked to sign them.

After the jury found the defendant guilty of felony

murder and the defendant appealed to this court, he

filed a motion for an articulation of the trial court’s

ruling on twelve different issues. The trial court denied

the motion, but this court granted the defendant’s

motion forreview and ordered the trial court to respond

to five of the issues19 relating to the trial court’s findings

on his mental health and drug addiction. The trial court

responded that it had made no findings relating to four

of the issues because it did not deem the defendant’s

testimony credible. With respect to the issue of the

defendant’s request for medication during the second

day of interrogation, the court stated that Tirado had

testified that the defendant never indicated any need

for his prescription medication, the detective did not

sense that the defendant needed medication, and the

detective thus made no inquiry regarding his need for

medication.

‘‘[T]he use of an involuntary confession in a criminal

trial is a violation of due process. . . . [T]he test of

voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s]

will to resist and bring about confessions not freely

self-determined . . . . The ultimate test remains . . .

[i]s the confession the product of an essentially free

and unconstrained choice by its maker? If it is, if he

has willed to confess, it may be used against him. If it

is not, if his will has been overborne and his capacity

for self-determination critically impaired, the use of his

confession offends due process. . . . The determination, by the trial court, whether a confession is voluntary

must be grounded [in] a consideration of the circumstances surrounding it. . . .
‘‘Factors that may be taken into account, upon a

proper factual showing, include: the youth of the

accused; his lack of education; his intelligence; the lack

of any advice as to his constitutional rights; the length

of detention; the repeated and prolonged nature of the

questioning; and the use of physical punishment, such

as the deprivation of food and sleep. . . . Under the

federal constitution, however, coercive police activity

is a necessary predicate to the finding that a confession

is not voluntary . . . .

‘‘It is well settled that [t]he state bears the burden of

proving the voluntariness of the defendant’s confession

by a preponderance of the evidence. . . . [As for] the

scope of our review] we note the established rule that

[t]he trial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession

are findings of fact . . . which will not be overturned

unless they are clearly erroneous.’’ (Citations omitted;

internal quotation marks omitted.) State v. Pinder, 250

Conn. 385, 418–20, 736 A.2d 857 (1999).

‘‘[A]lthough we give deference to the trial court concerning these subsidiary factual determinations, such

deference is not proper concerning the ultimate legal

determination of voluntariness. . . . Consistent with

the well established approach taken by the United

States Supreme Court, we review the voluntariness of

a confession independently, based on our own scrupulous examination of the record.’’ (Citations omitted;

internal quotation marks omitted.) Id., 420. ‘‘[A]pplying

the proper scope of review to the ultimate issue of

voluntariness requires us . . . to conduct a plenary

review of the record in order to make an independent

determination of voluntariness.’’ Id., 421.

We conclude, on the basis of the trial court’s factual

findings and under the totality of the circumstances,

that the defendant’s written statement was voluntary.20

Although we recognize that the trial court may consider

a defendant’s emotional state, intoxication and mental

disease in determining whether a confession is voluntary; see, e.g., State v. Usry, 205 Conn. 298, 305–306,

533 A.2d 212 (1987); the trial court in the present case

stated in its ruling and articulation that it had evaluated

the testimony of the police officers and the defendant

and that it did not deem credible the defendant’s testimony that he was under the influence of drugs and in

need of his prescription medication on March 7, the

second day of interrogation, when he signed the incriminating statement.

‘‘[W]e may not substitute our judgment for that of the

trial court when it comes to evaluating the credibility of

a witness. . . . It is the exclusive province of the trier

of fact to weigh conflicting testimony and make determinations of credibility, crediting some, all or none of

any given witness’ testimony. . . . Questions of
whether to believe or to disbelieve a competent witness

are beyond our review. As a reviewing court, we may

notretry the case or pass on the credibility of witnesses.

. . . We must defer to the trier of fact’s assessment of

the credibility of the witnesses that is made on the basis

of its firsthand observation of their conduct, demeanor

and attitude.’’ (Internal quotation marks omitted.) State

v. DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014).

We therefore conclude that the trial court’s credibility

determination and its derivative findings that the defendant was not suffering from the effects of crack cocaine

or from a lack of prescription medication when he

signed the confession were not clearly erroneous, and,

because there were no undisputed facts in the record

that would lead us to conclude that the confession was

involuntary, the defendant cannot prevail on his claim

that the trial court improperly denied his motion to

suppress.

The judgment is affirmed.

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

ESPINOSA and ROBINSON, Js., concurred.

1 General Statutes § 53a-54c provides: ‘‘A person is guilty of murder when,

acting either alone or with one or more persons, he commits or attempts

to commit robbery, burglary, kidnapping, sexual assault in the first degree,

aggravated sexual assault in the first degree, sexual assault in the third

degree, sexual assault in the third degree with a firearm, escape in the first

degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any,

causes the death of a person other than one of the participants, except that

in any prosecution under this section, in which the defendant was not the

only participant in the underlying crime, it shall be an affirmative defense

that the defendant: (1) Did not commit the homicidal act or in any way

solicit, request, command, importune, cause or aid the commission thereof;

and (2) was not armed with a deadly weapon, or any dangerous instrument;

and (3) had no reasonable ground to believe that any other participant was

armed with such a weapon or instrument; and (4) had no reasonable ground

to believe that any other participant intended to engage in conduct likely

to result in death or serious physical injury.’’

2 The defendant initially was charged with one count of murder. On March

20, 2009, the state filed a substitute information containing seven counts,

including the original count of murder. On April 27, 2011, the state filed a

final substitute information charging the defendant with murder and felony murder.

3 The sixth amendment to the United States constitution provides in relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him; [and] to have compulsory

process for obtaining witnesses in his favor . . . .’’

‘‘A defendant’s right to present a defense is rooted in the compulsory

process and confrontation clauses of the sixth amendment . . . [which]

are made applicable to state prosecutions through the due process clause

of the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct.

1065, 13 L. Ed. 2d 923 (1965) (right to confrontation); see Washington v.

Texas, 388 U.S. 14, 18, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (right to

compulsory process).’’ (Internal quotation marks omitted.) State v. Hedge,

297 Conn. 621, 625–26 n.2, 1 A.3d 1051 (2010).

4 The defendant also claims that the trial court should have denied the

state’s oral motion in limine summarily as procedurally improper because

Practice Book § 42-15 provides that a motion in limine must be in writing.

The defendant argues that the apparent purpose of a written motion in

limine, although not stated in the rules of practice, is to provide fair notice

of the objection to the opposing party, and that the state’s motion was

designed to circumvent this purpose. The defendant, however, did not object

to the motion on procedural grounds at the time it was made, does not

claim on appeal that he was not provided with adequate notice to respond
or that he otherwise was harmed by the procedural impropriety, and cites

no authority in support of his claim. Accordingly, we conclude that the

claim has no merit.

5 The following exchange occurred between the prosecutor and the

defendant:

‘‘Q. . . . So, how many felony convictions would you say that you have

in all?

‘‘A. I never said I wasn’t arrested a multitude of times. I was arrested a

lot, a lot, a lot of times.

‘‘Q. I know. You were arrested a ton of times, but I’m talking about just

the arrests that resulted in felony convictions. How many would you say

you have?

‘‘A. I have no idea.

‘‘Q. You don’t keep track of your criminal record?

‘‘A. No. I pled guilty to anything and everything just to get it over with.

‘‘Q. And, now, on the issue of being arrested, you’ve been arrested dozens

and dozens of times, right?

‘‘A. Yes, I have.

‘‘Q. Not only here in Waterbury but out of state?

‘‘A. Yes, I have.

‘‘Q. What states?

‘‘A. Georgia and New Hampshire.

‘‘Q. Pretty much everywhere you’ve been, right?

* * *

‘‘A. No. I’ve been a whole lot of places that I ain’t been arrested.’’ (Emphasis added.)

6 The following exchange occurred between the prosecutor and the

defendant:

‘‘Q. Basically, [the police] wanted you to implicate yourself in a homicide

that you knew nothing about?

‘‘A. No. They wanted me to implicate other people. They . . . kept telling

me, [we] know you didn’t do it, just tell us what happened.

‘‘Q. They want you to say things that aren’t true in relation to this homicide?

‘‘A. I don’t know if they’re true or not.

‘‘Q. They want you to say things that you didn’t know whether or not

they are true about the homicide?

‘‘A. Yes. Yes.

‘‘Q. And that goes on for hours and hours and hours on day one?

‘‘A. Yes.

‘‘Q. They get you drunk, punch you, scream at you. I’m assuming—correct

me if I’m wrong—you are not feeling very good about the Waterbury police

at that point, right?

‘‘A. No. Punched me up, then [got] me drunk and [made] friends with me

. . . everybody was buddy, buddy.

‘‘Q. Did you forgive them for punching you because they gave you a couple

of drinks?

‘‘A. No. I forgot about [Detective George] Tirado.

‘‘Q. Did you think, all of a sudden, boy, these are a good bunch of guys,

I think I’ll, you know, hang out with them, do what they want me to do?

‘‘A. No, because I didn’t do what they wanted me to do. I didn’t know

nothing.

‘‘Q. So, you would be at that point extremely suspect of anything that

they ask you to sign or any piece of paper that they put under you and said,

‘don’t worry about it, just sign off on it.’ Wouldn’t you be a little bit leery

about [that]?’’

‘‘A. No, because [the] Waterbury police beat up everybody.

‘‘Q. Okay. And they beat up everybody because the people won’t tell them

what they want to [hear]?

‘‘A. Evidently, yes.

* * *

‘‘Q. Okay. So are those the kind of people that you’re going to put your

faith in and trust when they put a piece of paper under your nose and ask

you to sign it?

‘‘A. No, but I would sign it to stop it, to get them to leave me alone.’’

(Emphasis added.)

7 The following exchange occurred between the prosecutor and the

defendant:

‘‘Q. Okay. Now, before we get to day two [of the interrogation], let’s talk

about the medications that you’re supposedly on. Okay, again, like with the

glasses, are you making a claim to the jury that you couldn’t understand
what was going on because you didn’t have your pills?

‘‘A. Never said that.

‘‘Q. Okay. So did the fact that you . . . didn’t have access to your pills,

did that in any way restrict your ability to understand what was going on?

‘‘A. No.

‘‘Q. Did you understand what [the police] were saying to you.

‘‘A. Yes.

‘‘Q. It’s not like—correct me if I’m wrong—you’re not out of your mind

crazy, you don’t know what’s going on, right?

‘‘A. No.’’ (Emphasis added.)

8 The following exchange occurred between the prosecutor and the

defendant:

‘‘Q. Has your addiction caused you to spend pretty much your whole life

in and out of jail?

‘‘A. Yes.

* * *

‘‘Q. Has it cost you the loss of relationships with your family?

‘‘A. No. Abuse caused me the loss of relationship[s] with my family. . . .

‘‘Q. Does that make you angry?

‘‘A. That’s what got me using the drugs to cloud—to get rid of [the] demons

that were in my head. That’s what did it.

‘‘Q. So [you were] beaten violently as a child?

‘‘A. Yes.

‘‘Q. Run to drugs to calm the demons in your head?

‘‘A. To quiet them down, yes.

‘‘Q. So, if you don’t have the drugs, are the demons screaming at you?

‘‘A. Telling me to get away from everybody, and even when I’m on the

drugs, they make me leave people alone. They make me get away from

people, not be around them. I don’t like to be around people. Being around

people scares me. I’m a big man today, yes.’’ (Emphasis added.)

9 The following exchange occurred between the prosecutor and the

defendant:

‘‘Q. Okay. So . . . Russell never had a grudge against you?

‘‘A. I don’t think so.

‘‘Q. Never had run-ins with her?

‘‘A. I met her a couple of times on the street. She kept . . . trying to

seduce me with drugs. I never wanted nothing to do with her.

‘‘Q. Nothing that would cause you to think that she would falsely accuse

you of being there in that basement?

‘‘A. I don’t know.

‘‘Q. Based on your past with her?

‘‘A. I don’t know. A woman scorn[ed] could do anything.

‘‘Q. Now she’s scorn[ed]?

‘‘A. Like I told you, she tried to seduce me, entice me with narcotics on

several occasions, but I don’t do heroin.

‘‘Q. And did you get the sense from her testifying that she was trying

to seduce you at that point when she was up there crying for hours in a

row, refusing to look over at you?

‘‘A. She stuck her tongue out at me. What do you mean?

‘‘Q. She stuck her tongue out at you?

‘‘A. Yes, she did. You saw it.’’ (Emphasis added.)

10 The following exchange occurred between the prosecutor and the

defendant:

‘‘Q. And how many times did you say you’ve been arrested before?

‘‘A. You know.

‘‘Q. Well, I’m asking you. I don’t testify. How many times have you

been arrested?

‘‘A. Forty. Thirty something, forty something.

‘‘Q. Based on those numerous interactions with the police, you didn’t

think you had the right to read through the statement before you signed it?

‘‘A. I’ve never had to sign a statement, ever, never, never, never. I [have]

never been questioned by detectives, never, ever, ever, never. Is that enough

nevers for you? Never.

‘‘Q. No, it’s not because—

‘‘A. I can tell you never—I [have] never been arrested. I [have] never been

questioned. [I] never went through this. . . . I never went through this. I

never did this before.

‘‘Q. Come on. You said that [one of the police officers], the good guy, had

brought you down and questioned you about this case in the past?

‘‘A. I didn’t have to sign nothing.
‘‘Q. But you just testified that you [had] never been questioned before,

ever, ever, ever?

‘‘A. [He] [w]asn’t question[ing] [me]. He ask[ed] me, would I give [a] blood

sample and would I give [a] hair sample.

‘‘Q. Those end with a question mark. Aren’t those questions?

‘‘A. And I said, yes. I didn’t have to sign anything to say yes. I said yes.

* * *

‘‘Q. Okay. Your testimony is, as I understand it . . . I don’t know nothing

about what happened in the basement?

‘‘A. Exactly.

‘‘Q. Did it surprise you when they put in front of you a three, almost four

full page statement of single spaced typed lines and asked you to sign off

on it? Did that cause you to think, boy, I don’t know anything about this

case. I wonder why there’s so much stuff in this statement?

‘‘A. I signed it and I initialed it. . . . But for the nineteenth time, I didn’t

read it. I did not read it. I didn’t want to read it. I didn’t care about reading

it. I just wanted to sign it and go back downstairs and be locked away so

that way . . . we can move on to where we are right now and—

‘‘Q. Did it cause you any concern or did it pop a light bulb in your head,

boy, there’s a lot of typed up words on here; I wonder why there’s so many?

‘‘A. There’s a lot of typed up words in the newspaper; that mean[s] nothing.’’ (Emphasis added.)

11 The prosecutor argued: ‘‘Now, the defendant, by anybody’s estimation

and certainly by this evidence, is a hardened criminal. He’s been in and

out of . . . jail his entire adult life. I don’t condemn him for that. I don’t

ask you to say, oh, he’s a bad man, he must be guilty, but I ask you to think

about—think about how that would affect your dealings with the police.

He’s been arrested dozens and dozens of times. It’s not like it’s somebody

who’s never had any interaction with the police and can’t handle himself

in the police department. He has numerous felony convictions, in and out

of jail his entire life. Did he strike you, during his testimony, and during

how he carefully chose the words that he responded to the questions to,

and how he would challenge me—that’s fine, how he would challenge the

judge at times. That’s fine. I have . . . no problem with that. But think

about whether or not that’s consistent with his claim that he didn’t know

what he was signing, that he didn’t read it. You saw him. Does he strike

you as the kind of person who would go along with what the police were

saying without having a little bit of an untrusting eye when he looked at

what they were putting in front of him? That is a key point in this case. His

familiarity with the police department, his distrust of them. By his own

words, he finds them to be violent; he finds them to be manipulative. Is

that the kind of person who’s going to go in and sign a statement without

reading it? It just doesn’t make any sense. He knew he was in trouble. The

police told him from moment one when they put him in the back of the

patrol car, we have an arrest warrant for you for murder. He’s questioned

by Detective [George] Tirado during day one, questioned over, and over,

and over again. Questioned by [Sergeant Michael] Slavin and Tirado on day

two over, and over, and over again. And his testimony just flies in the face

of common sense because, after all that, of course, the police thought he

had something to do with it. They were telling him what other witnesses

had said. They were telling him what . . . Russell had said. How can it

possibly be that, at that point, he signs off on the statement and he thinks

it’s to get him out of trouble? Does that make any sense at all?’’ (Emphasis added.)

12 Defense counsel argued: ‘‘I asked, and you heard me ask, and you heard

the answer: Does the Waterbury Police Department, the Detective Bureau,

have the capacity to videotape interviews? Do they have the capacity? And

the answer is, yes. We have the capacity. We can do that. And if they did

that, we wouldn’t even be playing around with this. You have cell phones.

I have a cell phone. I could probably record my closing arguments, stand

right here and do that. They have the capacity. It was 1999. They could have

done it. No. I stand corrected, it was 2009. They could have done it.

‘‘Yeah. It’s more accurate for a police officer to say he signed these rights

forms than if the police officer were to say, ‘I told him his rights.’ Yeah, it’s

more accurate for a police officer to say he signed this statement than if a

police officer came in and said, ‘He told me he didn’t.’ But this is the age

of technology, and this is the age where we can eliminate questions, we

can eliminate uncertainty, we can eliminate accusations, very, very, simply.

It doesn’t take a whole lot. They have the capacity.’’

13 The prosecutor argued: ‘‘[Defense counsel] stands up [and says], ‘beyond
a reasonable doubt, beyond a reasonable doubt. It’s way up here.’ You heard

what beyond a reasonable doubt is in the introductory remarks from the

judge before we even picked you all as jurors. And the one thing you heard

is it’s a human burden. It’s a burden that can be borne by a prosecutor. It

doesn’t mean—and I asked each and every one of you—it doesn’t mean the

perfect case. It doesn’t mean absolutely 100 percent to a scientific certainty.

Those cases don’t exist. The law acknowledges that there are frailties in

human memory, that there are—there is always something that can come

up that you can think about, well, why didn’t they do this? Why didn’t they

do this? What about the hair on the face, right? There is not one shred of

evidence, not one shred of evidence, that that hair has any importance at

all in this case, but what the defense attorney wants you to do is say, ‘that’s

reasonable doubt.’ That’s not reasonable doubt. There is no evidence about

what it was. . . . Keep in mind the one reason that we are here. The one

reason we are here is because [the defendant] got himself in a drug frenzy

and started to choke the life out of [the victim] in order to take her property

by force.’’ (Emphasis added.)

14 The prosecutor argued: ‘‘Now, one of the most powerful tools that you

have in your arsenal of common sense is to observe witnesses on the stand.

You all are seated in such a fashion that you are close to the witness

stand. You can watch how people act. You can watch how they respond to

questions. You can watch the expressions on their face[s]. And I think it’s

not hard, based on this evidence, to remember . . . Russell’s reaction when

she testified in this case. Her actions physically on the witness stand were

consistent with someone who was terrified. Do you remember when there

were those long pauses and one especially long pause when I asked her to

identify the defendant? She couldn’t—she couldn’t physically look at him.

She had her hand up, right on the witness stand, her hand up almost her

entire testimony blocking a view toward the defendant. Use your common

sense. Why do you think that is? Why would she be so afraid? Why would

she keep silent for so long? Because she lived in these streets that the

defendant ran for years and years. That’s why she didn’t say anything. And

you got to see how she acted on the witness stand.’’

The prosecutor subsequently argued: ‘‘And you have . . . Russell, okay.

Is she the perfect witness? Does she, you know, have a long work history,

and go to church on Sundays, and volunteer to help people? No. She’s a

heroin addict. Who do you all expect to be in a basement on Burton Street

getting high? You know, we take the witnesses as we find them. The fact

that she’s a heroin addict corroborates her testimony that she was in the

basement. She went there to get high. Did she seem like she was proud of

what she was? Absolutely not. But think about how hard it must be to get

on the witness stand and come in and say all those embarrassing things

about yourself. Yeah, I wanted to get high. Yes, I am a heroin addict. Yes,

I went and I scored drugs, and I went into the basement and shot them up.

She has a family. You heard about that. She has kids. The fact that she

would come in and say those things, which are so embarrassing to her,

and that she would be trembling, trembling, physically trembling, crying

uncontrollably almost, during her testimony, supports the fact that she

was being truthful. And her testimony corroborates the police testimony

because much of what she says happens is what the police say they heard

from the mouth of the defendant. And look to her demeanor on the stand.’’

(Emphasis added.)

15 The prosecutor argued: ‘‘And, you know, the claim that Russell’s testimony—somehow she got it wrong. She has all the right people in the basement at 17 Burton Street. She has the body found within five or ten feet of

where she describes the frenzy, the attack, the choking, the soon to be

sexual assault. Within feet of where the body is found is where she says it

started. And, you know, all this crime scene stuff. People watch too much

[Crime Scene Investigation]. If things—details don’t line up perfectly like

they do on TV, where they find a twig, or a hair, and, all of the sudden, the

whole case is busted wide open. This is a homicide from [twelve, thirteen]

years ago. Use your common sense and look at the major details that all

do line up. She describes a physical attack on [the victim]. The body of [the

victim] supports that. The statement that the defendant gave in writing, and

verbally, to the police support[s] [Russell’s] version of events. The medical

examiner supports her version of events. She says, once things started to

go sour, she got out of there.’’ (Emphasis added.)

16 The prosecutor argued: ‘‘Now, one of the things that prosecutors sometimes get in trouble [for] in closing arguments is saying what they believe,

okay. My function here is not to convince you that I believe the defendant

is guilty. What my opinion is does not matter. What I’m here to do is to

ask you to use your God given, everyday common sense. Look at the evidence

in the case, consider what the witnesses said, look at things like corrobora-
tion, look at things like the demeanor of the witnesses on [the] stand, and

draw your own conclusions about what the state has proven in this case.

I’m not here to convince you that I think he’s guilty. What I’m here to do

is to try and convince you that when you look at the evidence in this case

critically, use your everyday common sense. Look at it critically and make

your own decision. And the inescapable conclusion, once you look at all

the evidence in this case, is that the defendant is clearly guilty. We have an

eyewitness and a confession.’’ (Emphasis added.)

17 The prosecutor argued: ‘‘It’s a burden that can be borne by a prosecutor.

It doesn’t mean—and I asked each and every one of you—it doesn’t mean

the perfect case. It doesn’t mean absolutely 100 percent to a scientific

certainty. Those cases don’t exist. The law acknowledges that there are

frailties in human memory, that there are—there is always something that

can come up that you can think about, well, why didn’t they do this? Why

didn’t they do this? What about the hair on the face, right? There is not one

shred of evidence, not one shred of evidence, that that hair has any importance at all in this case, but what the defense attorney wants you to do is

say, ‘that’s reasonable doubt.’ That’s not reasonable doubt. There is no

evidence about what it was. They have access to the state forensic lab, they

can put on witnesses if they want to from the lab. Don’t be led down that

path. Keep in mind the one reason that we are here. The one reason we

are here is because [the defendant] got himself in a drug frenzy and started

to choke the life out of [the victim] in order to take her property by force.

And I don’t have to prove the moment of death, and I don’t have to prove

that he’s the one [who] inflicted the fatal blow. As to the felony murder

count, all I have to prove is that these guys were in on a robbery trying to

get that crack cocaine, and, as a result of that robbery, is that she ended

up dead. That’s it.’’ (Emphasis added.)

18 General Statutes § 53a-133 provides: ‘‘A person commits robbery when,

in the course of committing a larceny, he uses or threatens the immediate

use of physical force upon another person for the purpose of: (1) Preventing

or overcoming resistance to the taking of the property or to the retention

thereof immediately after the taking; or (2) compelling the owner of such

property or another person to deliver up the property or to engage in other

conduct which aids in the commission of the larceny.’’

19 Four of the questions related to the defendant’s medication, and the

other question related to the defendant’s drug addiction:

(1) ‘‘Specify whether the court found that the defendant was supposed

to be taking mental health medication . . . at the time of the custodial

interrogation and, if so, who prescribed said medication’’;

(2) ‘‘Specify whether the court found that the defendant’s inhibitions were

reduced by the lack of his mental health [medication]’’;

(3) ‘‘Specify whether the police knew or had reason to know or inquire

as to whether the defendant was taking mental health [medication]’’;

(4) ‘‘Specify whether the defendant was suffering from the effects of

withdrawal from crack cocaine at the time of the custodial interrogation,

and specify the factual and legal bases for that conclusion’’; and

(5) ‘‘Specify whether the defendant was suffering from a diagnosed mental

illness, whether that condition was bipolar disorder or some other mental

condition, and, if so, whether the Waterbury Police Department had reason

to know or inquire concerning said mental illness.’’

20 The defendant does not contest the fact that he was given his Miranda

warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966).