State v. O'Brien-Veader ( 2015 )

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STATE OF CONNECTICUT v. MATTHEW
O’BRIEN-VEADER
(SC 19038)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued January 14—officially released September 8, 2015
James B. Streeto, assistant public defender, for the
appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Terrence Mariani and Amy L. Sedensky,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
ROBINSON, J. The principal issue in this appeal
requires us to determine when a prosecutor’s apparent
breach of a trial court ruling becomes prosecutorial
impropriety implicating a defendant’s due process right
to a fair trial, rather than an evidentiary matter without
constitutional import. The defendant, Matthew O’Brien-
Veader, appeals1 from the judgment of the trial court,
rendered after a jury trial, convicting him of murder in
violation of General Statutes § 53a-54a (a),2 kidnapping
in the second degree in violation of General Statutes
§ 53a-94 (a), and felony murder in violation of General
Statutes § 53a-54c. On appeal, the defendant claims that
he is entitled to a new trial because: (1) numerous
instances of prosecutorial impropriety during the cross-
examination of the defendant’s expert witness and clos-
ing arguments deprived him of his right to a fair trial;
(2) the trial court improperly denied his motions for a
mistrial; (3) the evidence is insufficient to support his
kidnapping conviction under State v. Salamon, 287
Conn. 509, 949 A.2d 1092 (2008); and (4) the trial court
improperly precluded the testimony of two witnesses
who would have corroborated his defense of extreme
emotional disturbance. We disagree with all of these
claims and, accordingly, affirm the judgment of the
trial court.
The record reveals the following facts, which the jury
reasonably could have found, and procedural history.
In the spring of 2009, the defendant was twenty-one
years old and working for a residential construction
company. He shared an apartment in Waterbury with
several friends and coworkers in a multifamily house
on East Liberty Street. In June, 2009, the defendant quit
his job and moved out of the apartment, despite being
invited to remain there. The defendant then moved into
an abandoned factory building in Waterbury where the
victim, Joed Olivera, lived. The two men, who had been
friendly since the defendant was fourteen years old,
lived on the building’s third floor, which was full of
garbage and lacked power and water. They shared a
large mattress in that makeshift living space.
The relationship between the defendant and the vic-
tim rapidly deteriorated. The defendant stated that the
victim ‘‘had been making some comments’’ that ‘‘made
[him] feel uncomfortable.’’ After the defendant con-
fronted the victim about a perceived sexual advance,
the victim told the defendant that he had ejaculated on
him one night. Because of his increasing anger over
what the victim had told him, on June 8, 2009, the
defendant checked into a motel with his girlfriend,
Samantha O’Connor. At the motel, the defendant told
O’Connor about his discomfort with the victim, and his
intention to kill him.
The following day, June 9, 2009, the defendant
returned to the factory. In a statement to police, the
defendant recounted the events of that day as follows:
‘‘I just hung out with [the victim] all day at the factory.
[The victim] said it was safe and he wasn’t going to do
anything to me. I told [the victim] that if he had some
kind of crush on me then he had to tell me so I could
leave. I told [the victim] again that I had a girlfriend
and I am not a fag. I asked him if I could trust him and
he said ‘yes.’ Eventually I went to sleep . . . in the
corner of the bed. But before I went to sleep I had a
knife on me. . . . I went to sleep with the knife because
if [the victim] tried any of the faggot shit with me I was
going to kill him. If I felt a hand in the wrong place I
probably would have cut his hand off. . . . I fell asleep
and nothing happened that night.’’
The defendant’s statement continued: ‘‘For some rea-
son when I woke up I felt like I was violated, I kept
thinking about [the victim] saying he jerked off on me.
Every minute that went by, I got madder and madder.
[The victim] gave me [$10] and asked me to go [buy]
beer . . . . I took the money and . . . bought a [$5]
bag of . . . marijuana. I went back to the factory and
stayed on the first floor and smoked some of the [mari-
juana]. I was pacing back and forth thinking about what
I was going to do to [the victim]. I decided that I needed
to kill [the victim] for what he did to me. I wanted
answers from him and I was going to get them before
I killed him.’’
The defendant then went upstairs to the third floor
to see the victim, who asked why he had not purchased
any beer. Following an angry exchange, in which the
defendant asked the victim why he had ejaculated on
him and the victim accused the defendant of being
‘‘selfish and . . . trying to screw him over’’ because of
the beer money, the confrontation turned physical. The
defendant believed that the victim saw his knife, which
the defendant had hidden in the sleeve of his sweatshirt,
and the victim started moving toward a second knife
that was sticking out of a nearby wall. At that point,
the defendant took the second knife out of the wall,
grabbed the victim by the shoulder, and tried to throw
him down a flight of stairs that led to the second floor.
When the victim caught himself in the middle of the
staircase, the defendant began to beat him repeatedly
with a pair of crutches that the victim used because he
had a foot injury.
The defendant then tried to push the victim through
a hole in the floor at the bottom of the stairs so that
the victim would fall down to the first floor. When the
victim’s leg and part of his body were in the hole, he
pleaded and apologized to the defendant, who contin-
ued to yell at him, ‘‘[w]hy did you do this to me . . .
I trusted you, you were like a father to me.’’ After the
victim climbed out of the hole, the defendant hit him
with a metal rod and his fists. The defendant subse-
quently forced the victim at knifepoint to go back up
the stairs, so he could push him down a larger hole
between the third and second floors. The defendant
stated that he wanted the victim ‘‘to suffer and be tor-
tured.’’ The defendant then pushed the victim through
that hole, causing him to land on wood and debris on
the second floor below. As the victim continued to
plead with the defendant, the defendant hit him with a
fluorescent light tube, and then stabbed him in the neck,
chest, shoulder, and head with the dagger more than
thirty times until the victim appeared dead.3 The defen-
dant then covered the victim’s body with debris, and
gathered his belongings from the third floor.
After cleaning himself up and burying his blood cov-
ered knife and sweatshirt nearby, the defendant pur-
chased a forty ounce container of Natural Light beer,
returned to the factory, and poured some of it on the
victim’s body ‘‘because . . . it was his favorite.’’ While
sitting on the third floor, the defendant saw a note
inviting him and the victim to come to the East Liberty
Street house to meet some friends, among whom were
Jason Benoit and Gary Peden. The defendant visited
his friends at their house, and when Benoit asked the
defendant where the victim was, the defendant—with
no change in his ordinary demeanor—confessed what
he had done. Benoit did not believe the defendant, so
the defendant brought him to the factory and showed
him the victim’s body. Benoit and the defendant then
went to pick up O’Connor at her grandmother’s house
in Naugatuck. The defendant also sought to retrieve his
tools so that Benoit and Corey Bosse, another friend,
could pawn them for him.
After he confessed to her, O’Connor did not believe
what the defendant had done and wanted to see the
body, so the defendant again returned to the factory
with her, Benoit, and another friend, Dominic Wells.
O’Connor and the defendant then went to Saint Mary’s
Hospital in Waterbury where the defendant received
treatment for cuts to his hand sustained during his
attack on the victim.
The defendant and O’Connor spent that night at his
friends’ house on East Liberty Street. The following
day, the defendant decided to leave Connecticut, and
he and O’Connor began to walk to her grandmother’s
home in Naugatuck. In the meantime, Bosse reported
the defendant’s actions to the Waterbury police, who,
with the subsequent assistance of Benoit, located the
victim’s body on June 11, 2009. Waterbury police offi-
cers subsequently apprehended the defendant on his
walk to Naugatuck, and he later confessed to Detectives
Michael Slavin and Orlando Rivera.
The state charged the defendant with murder in viola-
tion of § 53a-54a (a), felony murder in violation of § 53a-
54c, and kidnapping in the second degree in violation
of § 53a-94 (a). The case was tried to a jury, and the
defendant did not contest having killed the victim, but
asserted a defense of extreme emotional disturbance,
which, under § 53a-54a, would reduce his murder con-
viction to manslaughter in the first degree in violation of
General Statutes § 53a-55 (a). The defendant presented
this case primarily through the expert testimony of Seth
Feuerstein, a psychiatrist, who opined that, because of
the defendant’s severe homophobia, his actions at the
time of the attack constituted an emotional ‘‘reaction,’’
albeit one without a ‘‘formal psychiatric diagnosis
. . . .’’4 Subsequently, the jury returned a verdict finding
the defendant guilty on all counts, and that he had not
proven the affirmative defense of extreme emotional
distress by a preponderance of the evidence. The trial
court rendered a judgment of conviction in accordance
with the jury’s verdict, and sentenced the defendant to
a total effective sentence of forty-seven years imprison-
ment.5 This direct appeal followed.
On appeal, the defendant claims that: (1) numerous
acts of prosecutorial impropriety during both the cross-
examination of Feuerstein and closing arguments war-
rant reversal of his conviction; (2) the trial court
improperly denied the defendant’s motions for a mis-
trial; (3) the evidence is insufficient to support the kid-
napping and felony murder convictions; and (4) the trial
court improperly precluded two defense witnesses from
testifying. Additional relevant facts and procedural his-
tory will be set forth when necessary.
I
PROSECUTORIAL IMPROPRIETY
We begin with the defendant’s claim that the trial
prosecutor6 ‘‘committed repeated, flagrant and egre-
gious improprieties’’ during the cross-examination of
Feuerstein and closing arguments, which deprived him
of a fair trial. We address each specific claim of impro-
priety in turn.7
The following general background principles guide
our analysis. ‘‘[A] claim of prosecutorial impropriety
. . . even in the absence of an objection, has constitu-
tional implications and requires a due process analysis
under State v. Williams, 204 Conn. 523, 535–40, 529 A.2d
653 (1987). . . . In analyzing claims of prosecutorial
impropriety, we engage in a two step process.8 . . .
The two steps are separate and distinct: (1) whether
[an impropriety] occurred in the first instance; and (2)
whether that [impropriety] deprived a defendant of his
due process right to a fair trial. Put differently, [impro-
priety] is [impropriety], regardless of its ultimate effect
on the fairness of the trial; whether that [impropriety]
[was harmful and thus] caused or contributed to a due
process violation is a separate and distinct question
. . . .’’ (Citations omitted; footnote added; internal quo-
tation marks omitted.) State v. Wilson, 308 Conn. 412,
434, 64 A.3d 91 (2013). The defendant bears the burden
of satisfying both of these analytical steps. See State v.
Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012). In
evaluating whether a defendant has carried that burden,
we recognize that prosecutorial inquiries or comments
that might be ‘‘questionable’’ when ‘‘read in a vacuum’’
often are, indeed, appropriate when ‘‘review[ed] . . .
in the context of the entire trial.’’ (Internal quotation
marks omitted.) State v. Fauci, 282 Conn. 23, 45, 917
A.2d 978 (2007). Accordingly, we supply in the footnotes
relatively lengthy transcript excerpts that are necessary
to put the challenged remarks and questions in their
proper context.
A
Whether the Prosecutor Improperly Used Sarcasm,
Personal Attacks, and Appeals to Emotion during
Cross-Examination
We begin with the defendant’s challenges to certain of
the prosecutor’s questions during his cross-examination
of Feuerstein as containing improper sarcasm, personal
attacks, and emotional appeals, namely: (1) a character-
ization of the defendant as ‘‘ ‘a mean and nasty person
who was looking to kill somebody’ ’’; (2) a query that
Feuerstein’s ‘‘ ‘testimony here is not really based on any
hard science’ ’’; (3) creating images of the ‘‘defendant
engaged in a murderous fight over $10’’; and (4) a
‘‘sneering comparison of the $10 given by the victim to
the defendant to . . . Feuerstein’s hourly rate . . . .’’
In response, the state contends that, viewed in context,
these questions were part of a legitimate challenge to
the premise and reliability of Feuerstein’s expert testi-
mony, including the exploration of alternative explana-
tions for the defendant’s conduct besides extreme
emotional distress. Having reviewed these claims in the
context of the full record, we conclude that only the
‘‘mean and nasty’’ characterization was improper.
‘‘A basic and proper purpose of cross-examination
of an expert is to test that expert’s credibility. . . .
Thus, [i]t is well established that an expert witness can
be examined concerning the factual basis of his [or her]
opinion. . . . Consequently, [i]n cases [in which] the
defendant places his [or her] mental status in issue, the
basis for a psychiatric expert’s opinion is one of the
things that the trier of fact may consider in evaluating
the testimony of that expert.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Copas, 252 Conn.
318, 327, 746 A.2d 761 (2000). ‘‘Though it is manifestly
the purpose of cross-examination to expose to the jury
facts from which it may gauge the credibility of an
expert witness . . . a prosecutor may not express his
own opinion of the witness’ credibility, such as by
engaging in a line of questioning designed to mock
and belittle that witness.’’ (Citations omitted; emphasis
omitted.) State v. Wilson, supra, 308 Conn. 437–38.
Further, it is well settled that a ‘‘prosecutor may not
appeal to the emotions of the jurors by engaging in
character assassination and personal attacks against
either the defendant or one of his witnesses. . . . A
prosecutor may not ask a question or make a comment
during cross-examination that suggests that the defen-
dant has a bad character or propensity for criminal
behavior.’’ (Citation omitted.) State v. Warholic, 278
Conn. 354, 389–90, 897 A.2d 569 (2006). ‘‘It must be
acknowledged that the line between comments that risk
invoking the passions and prejudices of the jurors and
those that are permissible rhetorical flourishes is not
always easy to draw. The more closely the comments
are connected to relevant facts disclosed by the evi-
dence, however, the more likely they will be deemed
permissible.’’ State v. Albino, 312 Conn. 763, 773, 97
A.3d 478 (2014).
1
‘‘Mean and Nasty Person’’ Comment
We begin with the defendant’s claim that the prosecu-
tor improperly referred to him during cross-examina-
tion as a ‘‘mean and nasty person who was looking to
kill somebody.’’ Read in context, we agree with the
defendant that this reference was an inappropriate per-
sonal attack that warranted the trial court’s exercise
of its discretion to sustain the defendant’s objection to
that question. A review of the transcript demonstrates
that the ‘‘mean and nasty’’ comment apparently was
posited as an alternative explanation to Feuerstein’s
point that the defendant’s act was an uncharacteristic
extreme emotional reaction to what he perceived as
sexual misconduct by the victim.9 Contrary to the state’s
arguments, this comment was a gratuitous, crudely
phrased, and inflammatory description that was not
necessary to advance the prosecutor’s otherwise well
supported point, namely, that Feuerstein’s assessment
was based on an apparently incomplete picture of the
defendant’s psychiatric history. Cf. State v. Andrews,
313 Conn. 266, 295–96, 96 A.3d 1199 (2014) (prosecutor’s
description of defendant as ‘‘ ‘hardened criminal’ ’’ was
‘‘not denigrating and sarcastic but fairly described the
defendant in language reflecting his criminal past’’).
The prosecutor’s reference to the defendant as ‘‘a mean
and nasty person who was looking to kill somebody’’10
was particularly gratuitous given that it was uncon-
tested that the defendant had committed the homicidal
act in this case.11 Accordingly, we conclude that this
reference to the defendant as a ‘‘mean and nasty person
who was looking to kill somebody’’ constituted prosecu-
torial impropriety.12
2
Other Challenged Questions
We next turn to the defendant’s challenges to the
prosecutor’s (1) suggestion that Feuerstein’s ‘‘ ‘testi-
mony here is not really based on any hard science,’ ’’
(2) representation, during cross-examination, that the
‘‘defendant engaged in a murderous fight over $10,’’ and
(3) ‘‘sneering comparison of the $10 given by the victim
to the defendant to . . . Feuerstein’s hourly rate
. . . .’’
We first conclude that the prosecutor’s question ask-
ing whether Feuerstein would agree ‘‘that the substance
of [his] testimony here is not really based on any hard
science,’’ was, read in context, not a gratuitous personal
attack on Feuerstein. Rather, that statement was a
proper—albeit aggressively phrased—attack on the
credibility of Feuerstein’s opinion by questioning him
about the methods that yielded the underlying data.13
See State v. Wilson, supra, 308 Conn. 439–41 (conclud-
ing that prosecutor’s characterization of inexperienced
expert witness’ work on case ‘‘as a ‘maiden voyage’ ’’
was not improper ad hominem attack, but also conclud-
ing that it was improper name calling for prosecutor
to call expert ‘‘ ‘Pete the carpenter’ ’’ or ‘‘ ‘piece of
work’ ’’). Contrary to the defendant’s arguments in his
reply brief, the statement at issue in this case is not
comparable to those contemplated in State v. Maguire,
310 Conn. 535, 556–58, 78 A.3d 828 (2013), wherein we
held, inter alia, that it was improper denigration and
belittling of the role of defense counsel for the prosecu-
tor to describe the defense theory as ‘‘ ‘smoke and mir-
rors,’ ’’ or to misrepresent the theory of defense as
asking the jury to condone child sexual abuse.
We similarly disagree with the defendant that the
prosecutor improperly made a ‘‘disdainful comparison
of $10 to [Feuerstein’s] stated hourly rate,’’ or used
cross-examination questions to create the image of the
‘‘defendant engaged in a murderous fight over $10
. . . .’’ In context, those questions appear intended to
highlight the importance of $10 to the defendant and
the victim, who were homeless men, and make the point
that a relatively insignificant amount of money could
motivate a homicide, thus providing an alternative
explanation for Feuerstein’s theory that the killing was
an emotional response to sexual advances by the vic-
tim.14 Nothing in this line of questions referred to
Feuerstein’s compensation specifically, but rather, sim-
ply highlighted the fact that the same sum of money
might mean different things to persons of different eco-
nomic circumstances.
In sum, these questions—although abrasively
worded—are rooted in the evidence in the record and
do not begin to approach the egregiousness of those
at issue in State v. Maguire, supra, 310 Conn. 535. We
conclude, therefore, that these questions did not
amount to an improper personal attack on Feuerstein.
B
The Prosecutor’s Disregard of Certain Court Orders
The defendant next claims that the prosecutor
improperly flouted numerous orders of the trial court
while cross-examining Feuerstein. Specifically, the
defendant challenges the prosecutor’s apparent: (1) ref-
erence in front of the jury to the trial court’s ruling
holding certain of the defendant’s medical records inad-
missible for purposes of cross-examination; (2) disre-
gard of the trial court’s admonitions to phrase his
questions to Feuerstein as hypotheticals, rather than
assertions of fact; and (3) violation of a court order
requiring the disclosure to the defendant of all
uncharged misconduct evidence.
It ‘‘is well settled that prosecutorial disobedience of a
trial court order, even one that the prosecutor considers
legally incorrect, constitutes improper conduct.’’15 State
v. Ortiz, 280 Conn. 686, 704, 911 A.2d 1055 (2006). In
many cases, however, this black letter principle is easier
stated than applied. A prosecutor’s advocacy obliga-
tions may occasionally drive him or her close to the
line drawn by a trial court order regarding the use of
certain evidence. See, e.g., State v. Warholic, supra,
278 Conn. 406–407 (prosecutor did not violate order
precluding questions about substance abuse treatment,
despite fact his questions about substance abuse itself
resulted in warning from trial court that ‘‘this question
concerning prejudicial and collateral matters put him
‘a half a step away from a mistrial’ ’’); State v. Williams,
102 Conn. App. 168, 181, 926 A.2d 7 (‘‘[a]lthough the
prosecutor may have gone to the edge of the court’s
order, we cannot say on the basis of the record before
us that he deliberately violated the ruling or that he
intended to undermine the authority of the court’’), cert.
denied, 284 Conn. 906, 931 A.2d 267 (2007).
Even when it is determined that a prosecutor has
breached a trial court order, it can be difficult to distin-
guish between a mere evidentiary misstep and a poten-
tial due process violation. Our cases do, however,
provide some guiding principles. Not every misstep by
a prosecutor that exceeds the bounds of a trial court
order rises to the level of prosecutorial impropriety
that implicates a defendant’s due process rights, thus
requiring resort to the second step in the prosecutorial
impropriety analysis. See State v. Santiago, 269 Conn.
726, 742, 850 A.2d 199 (2004) (‘‘it is the severity of the
misconduct, considered in the context of the specific
facts and circumstances of a particular case, as opposed
to the intrinsic nature of the impropriety, that deter-
mines whether an impropriety is evidentiary or of con-
stitutional magnitude’’); accord State v. Gibson, 302
Conn. 653, 663 n.4, 31 A.3d 346 (2011) (acknowledging
that ‘‘there may be some overlap between the factors
that the reviewing court considers when determining
whether the prosecutor’s conduct was improper and
those that it considers when conducting its constitu-
tional analysis’’).
Whether a prosecutorial question or comment that
runs afoul of a trial court order implicates a defendant’s
due process rights is a case specific determination. This
determination turns on the degree to which the breach
undermines a trial court’s ruling that protects the integ-
rity of the fact-finding process by restricting the admis-
sion of unreliable or unduly prejudicial evidence. See
State v. Maguire, supra, 310 Conn. 558–60 (reference
in objection to ‘‘ ‘full interview, and that’s not in evi-
dence’ ’’ in questioning expert about inconsistencies in
victim’s statement undermined decision for prosecutor
and defendant to redact irrelevant portions of forensic
interview transcript); State v. Payne, supra, 303 Conn.
565–66 (improper for prosecutor to link murder and
jury tampering cases in summations when trial court
stated it would not indicate that cases were legally
related or permit prosecutor to argue that jury tamper-
ing was consciousness of guilt); cf. State v. Ubaldi, 190
Conn. 559, 573–74, 462 A.2d 1001 (unfair remark during
summations asking jury to draw negative inference
from witness’ absence that ‘‘implied that the defendant
was obligated to produce a witness whose invocation
of his constitutional right made it impossible to present
his testimony,’’ particularly when that witness ‘‘had
been identified as a ‘bookie,’ ’’ thus ‘‘undermin[ing] the
authority of the trial court’s ruling that such a matter
should not be considered by the jury’’), cert. denied,
464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).16
To this end, a comment or question is more likely to
rise to the level of constitutional impropriety when it
raises the specter of a prosecutor improperly prejudic-
ing the jury by interjecting his or her personal knowl-
edge of facts beyond the record. See State v. Maguire,
supra, 558–60. With this standard in mind, we turn to
the defendant’s specific claims of violations.
1
Reference to Medical Records Not in Evidence
Relying on State v. Maguire, supra, 310 Conn. 535, the
defendant first contends that the prosecutor improperly
asked a question that included a ‘‘stage whisper’’17 about
the trial court’s ruling that had deemed certain of the
defendant’s medical records inadmissible for purposes
of cross-examination. Specifically, the challenged ques-
tion by the prosecutor included this preface: ‘‘Okay.
And now, the records aren’t allowed to come in, but
having . . . .’’ The state ‘‘does not dispute that this
comment should not have been made,’’ but contends
that ‘‘the record is inadequate to determine whether
this was truly an instance of prosecutorial impropriety
or . . . merely a matter of an improperly phrased ques-
tion and, therefore, simply a claim of evidentiary error.’’
The state also contends that the remark was a ‘‘prefa-
tory comment’’ that, when read in context, did not con-
vey to the jury any ‘‘ ‘special knowledge’ ’’ about the
content of the medical records. Moreover, the state
contends that the jury was aware that the records had
not been admitted into evidence because it was present
when the state made the original motion. We agree with
the defendant, and conclude that this comment was
improper—albeit not as singularly egregious as the
comment identified in Maguire.
The record reveals the following additional relevant
facts and procedural history. The trial court declined
to admit the defendant’s medical records into evidence
on the ground that they were inadmissible under § 7-4
(b) of the Connecticut Code of Evidence because they
were not facts relied upon by Feuerstein in forming his
opinion. The prosecutor then asked Feuerstein:
‘‘[The Prosecutor]: I’m asking you as a health-care
professional, isn’t it a good thing to get records that are
very recent in time when trying to evaluate somebody’s
mental state?
‘‘[Feuerstein]: Yes.
‘‘[The Prosecutor]: Okay. And now, the records aren’t
allowed to come in, but having—
‘‘[Defense Counsel]: I object, Your Honor. Ask that
[it] be stricken.
‘‘The Court: The jury should disregard that comment.
‘‘[The Prosecutor]: Without talking to us about the
specifics of what’s in the records, are there items in
there that you would have considered when rendering
your opinion?’’18 (Emphasis added.)
We agree with the defendant that this comment, albeit
prefatory, raised the specter of a ‘‘stage whisper’’ about
materials contained in the medical records that the
prosecutor knows might have some bearing on the case,
but that the jury—for whatever reason—is not allowed
to see. We recently held similar comments to be
improper in State v. Maguire, supra, 310 Conn. 559,
wherein a prosecutor made a comment during an objec-
tion to the defendant’s cross-examination of a forensic
interviewer about inconsistencies in the victim’s state-
ment, which referred to ‘‘ ‘the full interview, and that’s
not in evidence.’ ’’ We agreed with the defendant that
this remark ‘‘indicat[ed] that redacted portions of the
transcript of the forensic interview refuted defense
counsel’s assertion that [the interviewer] did not chal-
lenge the victim with respect to inconsistencies in the
victim’s claims against the defendant . . . .’’ Id., 558.
We observed that this comment, among other impropri-
eties committed by the prosecutor, ‘‘conveyed to the
jury that the defendant or defense counsel was not
to be trusted. As this court previously has stated, the
prosecutor’s opinion carries with it the imprimatur of
the [state] and may induce the jury to trust the [state’s]
judgment rather than its own view of the evidence. . . .
Moreover, because the jury is aware that the prosecutor
has prepared and presented the case and consequently
. . . may have access to matters not in evidence . . .
it is likely to infer that such matters precipitated the
personal opinions.’’ (Internal quotation marks omitted.)
Id., 562. Ultimately, on the record in Maguire, we con-
cluded that this impropriety combined with others to
deprive the defendant of his right to a fair trial. See id.,
560–62. Accordingly, following Maguire, we conclude
that this comment was an impropriety that will require
us to determine whether it violated the defendant’s right
to a fair trial.
2
Disregard of Hypothetical Questions Ruling
The defendant next argues that the prosecutor
improperly questioned Feuerstein about whether peo-
ple kill each other over seemingly minor triggers like
$10 or parking spaces. See footnote 14 of this opinion.
Specifically, the defendant, in his reply brief, appears
to contend that these questions: (1) violated a trial court
order against hypothetical questions not based on evi-
dence in the record or the defendant’s medical records;
and (2) were not properly phrased as hypotheticals. In
response, the state contends that, to the extent that the
prosecutor violated the trial court’s ruling concerning
the questioning of Feuerstein, those violations were the
inadvertent product of good faith attempts to formulate
meaningful questions in response to a confusing and
legally erroneous interpretation of § 7-4 (c) of the Con-
necticut Code of Evidence. Citing State v. King, 289
Conn. 496, 958 A.2d 731 (2008), the state observes that
the ‘‘distinction between proper and improper ques-
tioning is often a subtle one.’’ We agree with the state,
and conclude that, to the extent that the prosecutor
breached the trial court’s evidentiary ruling concerning
the use of hypothetical questions, his questioning did
not rise to the level of prosecutorial impropriety that
implicates the defendant’s due process rights.
The record reveals the following relevant facts and
procedural history. Following a chambers conference
and subsequent argument on the record, the trial court
addressed the use of ‘‘hypothetical questions asked on
cross-examination’’ and ruled that, ‘‘[w]hile on direct
examination, a hypothetical question needs to be based
on facts in evidence. A greater latitude may be submit-
ted on cross-examination. Accordingly, subject to the
court’s discretion in the cross-examination of an expert,
any fact may be assumed in a hypothetical question to
test the skill, learning, or accuracy of the expert or to
ascertain the reasonableness . . . of the expert’s opin-
ion. The citation is Floyd v. Fruit Industries, Inc., [144
Conn. 659, 666, 136 A.2d 918 (1957)].19 So the cross-
examination of the expert does not have to include
facts that are . . . in evidence in general terms.
***
‘‘So again, with respect to the hypothetical questions,
as set out in the case law, the hypothetical question
because it’s cross-examination can’t have facts other
than those that are not . . . in evidence as part of the
hypothetical.’’ (Footnote added.)
Following an objection by the defendant, the trial
court later clarified that, under that ruling, the prosecu-
tor was ‘‘not to . . . put into hypotheticals facts that
are either not in evidence or part of the medical record.
I heard nothing about killing someone for a spot—
parking—that is in any way related to this case. Do
you understand?’’
The record discloses that the atmosphere in the court-
room at that point may have been tense, insofar as
the trial judge deemed it necessary to admonish the
prosecutor about raising his voice in court, leading the
prosecutor to apologize and confirm the scope of the
clarified order.20 Nevertheless, we conclude that the
prosecutor’s questions, although phrased in apparent
violation of the court’s evidentiary ruling, did not rise
to the level of an impropriety that is grist for the due
process mill. The initial ruling that the trial court put
on the record was not clear. Until the trial court’s subse-
quent clarification emphasizing its restriction of hypo-
theticals to those rooted in facts either in evidence or
contained in the defendant’s medical records, that ini-
tial order contained somewhat confusing double nega-
tives and, indeed, implicitly invited the use of extra-
record facts in hypotheticals—which would not contra-
vene Floyd, which was the basis for the trial court’s
ruling. The fact that the prosecutor’s questions about
small amounts of money or other trivial matters, such
as parking spots, serving as a motive for killing led to
a sustained objection because they crossed the initially
hazy line drawn by the trial court does not raise those
questions to the level of prosecutorial impropriety. See
State v. Sherman, 38 Conn. App. 371, 386, 662 A.2d
767 (concluding that prosecutor’s questions ‘‘did not
directly undermine the court’s ruling,’’ despite fact that
trial court ‘‘sustain[ed] the defendant’s objection to the
questions, it did so on the theory that the questions
were similar to those meant to be precluded by the
motion in limine,’’ particularly because trial court gave
prompt curative instruction to jury), cert. denied, 235
Conn. 905, 665 A.2d 905 (1995).
Further, to the extent that the defendant attacks the
prosecutor’s failure to indicate specifically that his
questions were hypothetical in nature, we conclude that
this was an error of form that did not undermine a
ruling protecting against the admission of evidence that
the trial court had specifically identified as substan-
tively unreliable or unduly prejudicial. Accordingly, we
conclude that these erroneously phrased questions did
not rise to the level of constitutional prosecutorial
impropriety.
3
Breach of Orders with Respect to Uncharged
Misconduct Evidence
The defendant next claims that the prosecutor
improperly attempted to impeach Feuerstein’s testi-
mony with ‘‘several instances of misconduct [that] had
not been disclosed in response to the defendant’s pre-
trial pleading, and for which there was no basis in the
record.’’ The only misconduct that receives any substan-
tive briefing, however, is the defendant’s claim that
the prosecutor improperly introduced evidence of his
threat to stab someone 100 times with a knife, despite
a ruling to the contrary. In an abundance of caution,
and because they are intertwined, we also address the
defendant’s apparent challenge to cross-examination
questions that asked Feuerstein whether he was aware
of (1) the defendant’s psychiatric hospitalization
approximately one month before the homicide in this
case ‘‘for threatening to kill or because he thought he
was going to kill’’ O’Connor, and (2) an incident when
the defendant’s friends took a knife away from him
because they were afraid he was going to hurt O’Con-
nor. The defendant posits that, based on an initial pre-
clusive order regarding the 100 times threat, these
references were inappropriate because the prosecutor
‘‘had been warned well in advance that these references
were inadmissible.’’ The defendant also argues that the
state failed to comply with an order granting the defen-
dant’s motion directing the state to disclose the
uncharged misconduct that it intended to use.
In response, the state argues that the trial court’s
initial preclusive ruling was limited to the state’s case-
in-chief, rather than for impeachment purposes. The
state also contends that the prosecutor’s use of this
uncharged misconduct evidence for impeachment pur-
poses did not violate the terms of the court’s order
on the defendant’s motion requiring the disclosure of
uncharged misconduct evidence, which by way of its
citation to State v. Acquin, 34 Conn. Supp. 152, 153,
381 A.2d 239 (1977), extended only to uncharged mis-
conduct utilized to prove guilt, rather than for impeach-
ment purposes. Contending that this misconduct did
not become relevant until Feuerstein testified that the
defendant had ‘‘ ‘no significant history of violence,’ ’’
the state also argues that the late disclosure by the
defense of the voluminous medical records that had
been reviewed by Feuerstein led to confusion on the
part of the prosecutor about whether the knife incident
was included in those records, and thus, was germane
for cross-examination. We agree with the state, and
conclude that any ostensible failure to comply with
orders with respect to uncharged misconduct evidence
did not rise to the level of constitutional prosecu-
torial impropriety.
We begin by reviewing the trial court’s orders with
respect to uncharged misconduct evidence. The defen-
dant filed a pretrial motion on November 28, 2011, ‘‘to
require notice of uncharged misconduct evidence,’’
seeking that ‘‘the state be ordered to provide defense
counsel with a written statement listing the nature, date
and place of any and all criminal offenses or acts of
misconduct . . . .’’ (Citation omitted.) As legal author-
ity for the motion, the defendant cited article first, § 8,
of the Connecticut constitution, Practice Book § 40-
12,21 and State v. Acquin, supra, 34 Conn. Supp. 152. On
December 14, 2011, the state filed a notice of uncharged
misconduct stating, inter alia, that it might seek to
admit: (1) ‘‘violent acts of the defendant . . . detailed’’
in the records disclosed by the defendant as relevant to
the defendant’s psychiatric defense; and (2) statements
made in the presence of Peden in which the defendant
‘‘threaten[ed] to stab someone ‘[100] times.’ ’’
When Peden testified during the state’s case-in-chief,
the prosecutor offered as uncharged misconduct evi-
dence Peden’s observation, recorded in his statement
to the police, that, approximately one week before the
homicide in this case, the defendant had waved a large
knife around and said that: ‘‘ ‘I just [want to] stab some-
one [100] times.’ ’’ After some argument centered on
whether that conduct constituted a crime, the trial court
ruled that it would not permit the prosecutor to question
Peden about that incident because it was not ‘‘miscon-
duct’’ subject to § 4-5 (b) of the Connecticut Code of
Evidence.
Subsequently, while cross-examining Feuerstein, the
prosecutor asked him, inter alia, whether he was aware
of (1) the defendant’s psychiatric hospitalization
approximately one month before the homicide in this
case ‘‘for threatening to kill or because he thought he
was going to kill’’ O’Connor, and (2) that the defendant’s
friends had to take a knife away from him because they
were afraid he was going to hurt O’Connor. See footnote
9 of this opinion. This line of questioning led to a multi-
faceted objection from the defendant.22
Having reviewed the parties’ briefs and the record,
we conclude that this claim is really a discovery dispute
that does not rise to the level of constitutional impropri-
ety. First, there is no constitutional right to the disclo-
sure of uncharged misconduct evidence, which is
inculpatory in nature. See, e.g., State v. Colon, 71 Conn.
App. 217, 241, 800 A.2d 1268, cert. denied, 261 Conn.
934, 806 A.2d 1067 (2002). Second, our review of the
record demonstrated that the state had indicated in its
disclosure that it would rely on episodes of misconduct
contained in the medical records reviewed by
Feuerstein, and the prosecutor’s belief that the episodes
at issue were reflected in those records. Further, given
the citation to State v. Acquin, supra, 34 Conn. Supp.
152, in the defendant’s motion for disclosure, the prose-
cutor’s argument that he was not required to disclose
materials beyond those used in the case-in-chief was
not frivolous or unreasonable. See id., 152–53 (noting
that motion at issue in Acquin sought disclosure of
uncharged misconduct evidence ‘‘other than those
charged in the present information and those offered
for impeachment purposes, which the state will attempt
to prove at the trial’’). Finally, even after extensive
argument, and the denial of a motion for a mistrial that,
in part, was based on the defendant’s claims of untimely
disclosure of this evidence, the trial court did not sanc-
tion the state or indicate any displeasure with the disclo-
sure provided. Instead, the trial court, focusing on its
order that the questioning of Feuerstein be conducted
through the use of hypotheticals, instructed the jury
that the questions were not evidence and that the jury
had ‘‘heard no evidence that the defendant threatened
to kill or stab [O’Connor].’’ Accordingly, given the lack
of clarity in the record on this point, we conclude that
the defendant has failed to establish that any breach
by the prosecutor with respect to the disclosure of
uncharged misconduct rose to the level of constitu-
tional impropriety.
C
Closing Argument Impropriety
Finally, the defendant challenges certain aspects of
the state’s closing and rebuttal arguments. In particular,
the defendant challenges the prosecutor’s arguments
that: (1) ‘‘common sense tells you that the version of
events that [the defendant] gives just doesn’t make
sense. There’s nothing corroborating his statement that
there were unwanted sexual advances’’; and (2) the
‘‘defendant in the beginning tried to immediately set up
a motive or an excuse as to why it was that he commit-
ted this crime. What he says does not make sense.’’ The
defendant argues that these comments were ‘‘improper
rhetoric [that] was a direct pick up from the prosecu-
tor’s sarcasm, incredulity, and disdain during cross-
examination’’ that amounted to an ‘‘unfair [appeal] to
emotion and prejudice.’’23 (Internal quotation marks
omitted.) In response, the state relies on State v. Long,
293 Conn. 31, 975 A.2d 660 (2009), and contends that
these statements were not improper because a prosecu-
tor may argue credibility and appeal to the jurors’ com-
mon sense during summations, as long as the arguments
are rooted in the evidence in the record. We agree with
the state, and conclude that the prosecutor did not
commit impropriety during closing arguments.
‘‘The parameters of the term zealous advocacy are
. . . well settled. . . . [A] prosecutor may not express
his [or her] own opinion, directly or indirectly, as to
the credibility of the witnesses. . . . Such expressions
of personal opinion are a form of unsworn and
unchecked testimony, and are particularly difficult for
the jury to ignore because of the prosecutor’s special
position. . . . Put another way, the prosecutor’s opin-
ion carries with it the imprimatur of the [state] and may
induce the jury to trust the [state’s] judgment rather
than its own view of the evidence. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . . However, [i]t is not improper for the
prosecutor to comment upon the evidence presented
at trial and to argue the inferences that the jurors might
draw therefrom . . . . We must give the jury the credit
of being able to differentiate between argument on the
evidence and attempts to persuade them to draw infer-
ences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret
knowledge, on the other hand.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Ciullo, 314 Conn.
28, 40–41, 100 A.3d 779 (2014).
Further, it ‘‘is well established that a prosecutor may
argue about the credibility of witnesses, as long as her
assertions are based on evidence presented at trial and
reasonable inferences that jurors might draw there-
from. . . . Moreover, [i]n deciding cases . . . [j]urors
are not expected to lay aside matters of common knowl-
edge or their own observations and experiences, but
rather, to apply them to the facts as presented to arrive
at an intelligent and correct conclusion. . . . There-
fore, it is entirely proper for counsel to appeal to [the
jurors’] common sense in closing remarks. . . . Our
jurisprudence permits these statements from the prose-
cution, if properly presented . . . .’’ (Citation omitted;
internal quotation marks omitted.) Id., 45–46; see also,
e.g., State v. Long, supra, 293 Conn. 41–42. The prosecu-
tor may also make these arguments with respect to the
credibility of statements by the defendant himself, so
long as they are rooted in the evidence at trial. See,
e.g., State v. Medrano, 308 Conn. 604, 616–19, 65 A.3d
503 (2013) (prosecutor properly argued defendant was
not credible because of evidence that he had larceny
conviction and had lied on job application, and had
motive to lie); see also State v. Smalls, 78 Conn. App.
535, 542–43, 827 A.2d 784 (prosecutor may properly
comment on defendant’s ‘‘voluntary pretrial statements
if the defendant relies on those statements for a
defense’’ and comment does not burden defendant’s
right not to testify), cert. denied, 266 Conn. 931, 837
A.2d 806 (2003).
Finally, in evaluating claims of impropriety during
summation, we recognize that ‘‘the privilege of counsel
in addressing the jury should not be too closely nar-
rowed or unduly hampered . . . .’’ (Internal quotation
marks omitted.) State v. Albino, supra, 312 Conn. 772.
‘‘When making closing arguments to the jury . . .
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment 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 advo-
cate, a prosecutor may argue the state’s case forcefully,
[provided the argument is] fair and based upon the facts
in evidence and the reasonable inferences to be drawn
therefrom.’’ (Internal quotation marks omitted.) State
v. Medrano, supra, 308 Conn. 611.
Read in context, we conclude that the prosecutor’s
arguments that the defendant’s statement and theory
did not ‘‘make sense’’ were not improper. Specifically,
the prosecutor cited ample evidence from the trial
record to establish that the defendant was not homo-
phobic—let alone violently so. The prosecutor, there-
fore, properly argued that the defendant’s extreme
emotional disturbance defense, as rooted in deep homo-
phobia, ‘‘did not make sense’’ given the evidence in the
record ‘‘that he acted exactly the opposite of someone
who would be homophobic,’’ by maintaining friendships
with openly gay men and by not reacting negatively to
a same sex sexual encounter that he had at a party.
See footnote 31 of this opinion. Accordingly, we con-
clude that the challenged remarks during closing argu-
ment were not prosecutorial impropriety.
D
Williams Due Process Analysis
Having identified two instances of impropriety during
cross-examination, namely, the prosecutor’s descrip-
tion of the defendant as a ‘‘mean and nasty person who
was looking to kill somebody,’’ and his reference to the
records that the trial court had declined to admit; see
parts I A 1 and I B 1 of this opinion; we now determine
whether they violated the defendant’s right to a fair
trial. ‘‘[O]ur determination of whether any improper
conduct by the [prosecutor] violated the defendant’s
fair trial rights is predicated on the factors set forth
in State v. Williams, supra, 204 Conn. 540, with due
consideration of whether that [impropriety] was
objected to at trial. . . . These factors include: the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the impropriety to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case. . . .
‘‘We recently clarified that when a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show, not
only that the remarks were improper, but also that,
considered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of
due process.’’ (Internal quotation marks omitted.) State
v. Ciullo, supra, 314 Conn. 57–58.
Reviewing the six Williams factors, we agree with
the state and conclude that the two identified improprie-
ties did not deprive the defendant of his right to a fair
trial. We acknowledge that the defendant did nothing
to invite them, and, in fact, thought both significant
enough to warrant both an objection when made and
later serve as a partial basis for a mistrial motion. See
also part II of this opinion. Nevertheless, these two
improprieties were confined to the cross-examination
of Feuerstein and, therefore, were not frequent. Second,
they also were not particularly severe, especially when
contrasted with the more vituperative language consid-
ered in some of our other cases; see footnote 10 of this
opinion; and the more focused stage whisper at issue
in State v. Maguire, supra, 310 Conn. 558–60, wherein
the prosecutor directly highlighted the existence of
redacted portions of records while questioning an
expert about inconsistencies in those records that had
been admitted into evidence. Third, the improprieties
were not particularly central to the state’s case against
the defendant or its attempt to refute the special
defense—the prosecutor did not address Feuerstein’s
testimony at all during closing or rebuttal arguments.
Fourth, the state’s case against the defendant as
explained during summations—including with regard
to responding to the defendant’s extreme emotional
disturbance defense—was very strong and rooted
largely in the defendant’s own statement and the gravity
and severity of the victim’s injuries. Finally, to the
extent there was any harm, it was mitigated by the trial
court’s prompt curative instruction directing the jury
to disregard the improper questions, which we presume
the jury followed. See, e.g., State v. Payne, supra, 303
Conn. 567–68; State v. Warholic, supra, 278 Conn. 404.
Accordingly, we conclude that these two isolated
instances of prosecutorial impropriety did not deprive
the defendant of a fair trial and, therefore, do not war-
rant reversal of this conviction.24
II
MISTRIAL MOTIONS
We next address the defendant’s claim that the trial
court improperly denied his two motions for a mistrial
based on the improper presentation of uncharged mis-
conduct evidence. The defendant contends that the
trial court should have granted his motions for a
mistrial upon: (1) a spontaneous statement by Richard
Innaimo, a Waterbury police detective, that he had uti-
lized ‘‘a booking photo[graph] with a physical descrip-
tion from a previous arrest’’ to aid in apprehending the
defendant; and (2) the prosecutor’s use of assertions
of fact, rather than hypothetical questions, to cross-
examine Feuerstein about prior misconduct by the
defendant such as threats to kill O’Connor and his
friends taking a knife away from him.25 In response,
the state argues that the trial court did not abuse its
discretion in determining that striking the challenged
evidence and issuing a curative instruction was an ade-
quate remedy short of declaring a mistrial. We agree
with the state, and conclude that the trial court did not
abuse its discretion by denying the defendant’s motions
for a mistrial.
The record reveals the following additional relevant
facts and procedural history.26 Innaimo testified that he
had been assigned to assist with the apprehension of
the defendant by the Waterbury police. The prosecutor
asked Innaimo whether he had ‘‘look[ed] at any type
of photograph or learn[ed] any other biological informa-
tion about’’ the defendant prior to going out to look for
him. Innaimo then responded that he ‘‘had a booking
photo[graph] with a physical description from a prior
arrest.’’ After Innaimo testified about the events con-
cerning the apprehension of the defendant, the defen-
dant asked to be heard outside the presence of the jury,
and moved for a mistrial, arguing that the ‘‘inquiry and
response in regards to the identification of the defen-
dant through a booking photo[graph] from a previous
arrest is completely inappropriate.’’ The defendant
stated that he had not objected at the time because
he did not want to draw more attention to Innaimo’s
comment. In response, the prosecutor argued that she
had not anticipated Innaimo’s answer, but contended
that prejudice would be mitigated by testimony antici-
pated from Feuerstein regarding the defendant’s prior
larceny arrest. After additional discussion, the trial
court denied the defendant’s motion for a mistrial,
deeming it a ‘‘severe sanction’’ that was not warranted
in light of the availability of a curative instruction, to
be given both at that time and reiterated later during
the final charge.27
Subsequently, an evidentiary dispute arose about the
potential introduction of evidence of uncharged mis-
conduct during the cross-examination of Feuerstein via
questions phrased as assertions of fact, rather than as
hypotheticals. See part I B 2 of this opinion. Defense
counsel renewed his previous motion for a mistrial aris-
ing from Innaimo’s reference to a booking photograph,
and stated, ‘‘at this point, the court is not just looking
at that one isolated statement,’’ arguing that ‘‘it’s the
cumulative nature of a variety of things that have
occurred that, in my opinion, are beyond any instruction
the court can give’’ with respect to preserving the defen-
dant’s right to due process and fundamental fairness.
The defendant again challenged the prosecutor’s ‘‘mean
and nasty person’’ question; see part I A 1 of this opinion;
and the phrasing of questions using assertions of fact
rather than hypotheticals, in particular the questions
about the defendant’s threats toward O’Connor, and the
fact that his friends had to take his knife away. In
response, the prosecutor argued that the ‘‘mean and
nasty person’’ comment was an alternative theory for
the homicide, and that the evidence of the defendant’s
threatening behavior was rooted in his medical records.
After ruling on the hypothetical phrasing, the trial court
denied the mistrial motion, stating that the jury would
be instructed that the prosecutor’s statements were not
evidence, and those references would be stricken from
the record. The trial court then instructed the jury
accordingly.28
‘‘The standard for review of an action upon a motion
for a mistrial is well established. While the remedy of
a mistrial is permitted under the rules of practice, it is
not favored. [A] mistrial should be granted only as a
result of some occurrence upon the trial of such a
character that it is apparent to the court that because
of it a party cannot have a fair trial . . . and the whole
proceedings are vitiated. . . . If curative action can
obviate the prejudice, the drastic remedy of a mistrial
should be avoided. . . . On appeal, we hesitate to dis-
turb a decision not to declare a mistrial. The trial judge
is the arbiter of the many circumstances which may
arise during the trial in which his function is to assure
a fair and just outcome. . . . The trial court is better
positioned than we are to evaluate in the first instance
whether a certain occurrence is prejudicial to the defen-
dant and, if so, what remedy is necessary to cure that
prejudice. . . . The decision whether to grant a mis-
trial is within the sound discretion of the trial court.’’
(Internal quotation marks omitted.) State v. Ortiz,
supra, 280 Conn. 702. Further, in ‘‘reviewing a claim of
abuse of discretion, we have stated that [d]iscretion
means a legal discretion, to be exercised in conformity
with the spirit of the law and in a manner to subserve
and not to impede or defeat the ends of substantial
justice. . . . In general, abuse of discretion exists
when a court could have chosen different alternatives
but has decided the matter so arbitrarily as to vitiate
logic, or has decided it based on improper or irrelevant
factors. . . . Therefore, [i]n those cases in which an
abuse of discretion is manifest or where injustice
appears to have been done, reversal is required.’’ (Inter-
nal quotation marks omitted.) Id., 703.
As previously discussed in part I B 2 of this opinion,
we conclude that the prosecutor’s breach of the trial
court’s evidentiary ruling by questioning Feuerstein
using assertions of fact, rather than hypotheticals, to
describe certain instances of prior misconduct, did not
implicate the defendant’s due process rights. We also
conclude that the brief reference to the booking photo-
graph, while unfortunate, was not excessively prejudi-
cial because neither the prosecutor nor Innaimo dwelt
on that point, and there was mention of the crime that
formed the basis for the arrest. The trial court, there-
fore, reasonably could have concluded that any preju-
dice to the defendant, including that created by the
‘‘mean and nasty person’’ comment, would be addressed
adequately by a curative instruction. Accordingly, we
conclude that the trial court did not abuse its discretion
by denying the defendant’s various motions for a
mistrial.
III
SUFFICIENCY OF THE EVIDENCE
We next address the defendant’s claim that there
is insufficient evidence to support his conviction for
kidnapping in the second degree, which serves as the
predicate for his felony murder conviction. Relying on,
inter alia, State v. Salamon, supra, 287 Conn. 509, and
State v. Ward, 306 Conn. 718, 51 A.3d 970 (2012), the
defendant contends that there is insufficient evidence
to establish beyond a reasonable doubt that there was
confinement or movement of the victim beyond that
incidental to the commission of another crime, in this
case, murder.29 In response, the state, citing State v.
Ward, supra, 718, and State v. Miranda, 145 Conn. App.
494, 75 A.3d 742, cert. granted on other grounds, 310
Conn. 942, 79 A.3d 894, cert. denied, 310 Conn. 942, 79
A.3d 893 (2013), contends that the kidnapping convic-
tion is supported by the defendant’s admission that he
wanted to torture the victim, as evinced by the length
of confinement and his acts of moving the victim to
numerous locations within the factory before ultimately
killing him. We agree with the state, and conclude that
the defendant’s kidnapping conviction is supported by
sufficient evidence.
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) State v. Gonzalez, 311 Conn. 408, 419, 87 A.3d
1101 (2014); see also id., 419–20 (setting forth more
detailed recitation of standard).
‘‘[I]n State v. Salamon, supra, 287 Conn. 542, this
court reconsidered its prior interpretation and con-
struction of the kidnapping statutes and concluded that
[o]ur legislature . . . intended to exclude from the
scope of the more serious crime of kidnapping and its
accompanying severe penalties those confinements or
movements of a victim that are merely incidental to
and necessary for the commission of another crime
against that victim. Stated otherwise, to commit a kid-
napping in conjunction with another crime, a defendant
must intend to prevent the victim’s liberation for a
longer period of time or to a greater degree than that
which is necessary to commit the other crime.
‘‘Although our holding in Salamon constituted a sig-
nificant change with respect to our interpretation of the
kidnapping statutes, we emphasized that [o]ur holding
does not represent a complete refutation of the princi-
ples established by our prior kidnapping jurisprudence.
First, in order to establish a kidnapping, the state is
not required to establish any minimum period of con-
finement or degree of movement. When that confine-
ment or movement is merely incidental to the
commission of another crime, however, the confine-
ment or movement must have exceeded that which was
necessary to commit the other crime. [T]he guiding
principle is whether the [confinement or movement]
was so much the part of another substantive crime that
the substantive crime could not have been committed
without such acts . . . . In other words, the test . . .
to determine whether [the] confinements or movements
involved [were] such that kidnapping may also be
charged and prosecuted when an offense separate from
kidnapping has occurred asks whether the confine-
ment, movement, or detention was merely incidental to
the accompanying felony or whether it was significant
enough, in and of itself, to warrant independent prose-
cution.’’ (Internal quotation marks omitted.) State v.
Ward, supra, 306 Conn. 731–32; see also State v. Sala-
mon, supra, 287 Conn. 547–48 (describing factors jury
should consider in determining whether ‘‘restraint was
not merely incidental to the commission of some other,
separate crime’’ [emphasis omitted]).
Based upon the facts in the record and the reasonable
inferences that they support, we conclude that suffi-
cient evidence underlies the defendant’s conviction of
second degree kidnapping. Consistent with the defen-
dant’s desire that the victim ‘‘suffer and be tortured,’’
there was sufficient evidence under which the jury
could have found beyond a reasonable doubt that the
defendant’s movement and confinement of the victim
was not merely incidental to the crime of murder, inso-
far as he engaged in conduct beyond that necessary to
hold the victim down and stab him to death. Specifically,
in a protracted altercation, the defendant prevented
the victim’s escape from the attack and forced him at
knifepoint to move among the various floors of the
factory building before they ended up on the third floor,
where the defendant forced the victim through the
larger hole in the floor, beat him with a broken fluores-
cent light tube, and stabbed him to death. The nature
and length of this encounter across multiple locations
in the factory supports the jury’s verdict convicting the
defendant of second degree kidnapping. See State v.
Ward, supra, 306 Conn. 736–39 (sufficient evidence of
kidnapping when defendant dragged victim at knife-
point from kitchen to bedroom where he moved her
from bed to floor for sexual assault because that act
made victim’s ‘‘possibility of escape even more remote,’’
and sexual assault was brief part of entire fifteen minute
encounter); State v. Salamon, supra, 287 Conn. 549–50
(defendant not entitled to acquittal of kidnapping
charge when he subdued victim and forcibly held her
down for at least five minutes in addition to acts of
assaulting her by striking her and forcing his fingers
into her mouth); State v. Miranda, supra, 145 Conn.
App. 513 (sufficient evidence of kidnapping when victim
was moved from second floor to first floor of apartment
where murder took place, with victim’s bruises and
lacerations supporting inference that ‘‘the defendant,
before committing the murder, subjected [the victim]
to a period of physical abuse, which required additional
confinement’’). Accordingly, we conclude that the jury’s
verdict that the defendant committed second degree
kidnapping was supported by sufficient evidence.
IV
PRECLUSION OF DEFENSE WITNESSES
The defendant’s final claim is that the trial court
improperly barred the testimony of two witnesses who
would have corroborated aspects of his extreme emo-
tional disturbance defense, specifically: (1) Christopher
Veader, the defendant’s brother, who would have testi-
fied about child sexual abuse in their family; and (2)
Rene Ingram, who would have testified to a same sex
sexual encounter with the victim. The defendant con-
tends that the trial court’s order: (1) was an improper
grant of an oral motion in limine in violation of Practice
Book § 42-15;30 and (2) ‘‘emasculated the defendant’s
defense and his constitutional rights’’ by barring ‘‘vital
corroborative testimony . . . .’’ In response, the state
argues, inter alia, that: (1) the defendant’s § 42-15 claim
is not preserved; (2) his constitutional claim is inade-
quately briefed; and (3) the trial court reasonably could
have barred the testimony of both witnesses as irrele-
vant or cumulative. We agree with the state that the
defendant’s evidentiary claims are not reviewable, inad-
equately briefed, or otherwise lack merit.
The record reveals the following additional relevant
facts and procedural history. During trial, the defendant
advised the trial court that the anticipated testimony
of Veader and Ingram presented issues to be resolved
outside the presence of the jury. The defendant prof-
fered Veader to testify that he had been sexually abused
by their stepfather in a place and manner similar to
that endured by the defendant, and was aware that the
stepfather had abused the defendant as well. The state
objected to Veader’s testimony as hearsay because he
had not witnessed the molestation of the defendant, as
irrelevant given that the defendant did not personally
see his abuse as contributing to the homicide, and as
cumulative of the testimony of Feuerstein and O’Con-
nor. The defendant argued in response that he would
not elicit hearsay testimony from Veader and that his
sexual abuse was ‘‘reasonably part of what [Feuerstein]
considered.’’ After Veader testified in an offer of proof,
the trial court excluded Veader’s testimony as both
irrelevant and hearsay not subject to the residual excep-
tion; see Conn. Code Evid. § 8-9; because it was neither
necessary nor supported by ‘‘equivalent guarantees of
trustworthiness . . . .’’
The defendant proffered Ingram to testify about a
same sex sexual encounter with the victim after a party
in 1991, eighteen years prior to the victim’s death. The
defendant argued that Ingram’s testimony would estab-
lish that the victim was gay and had solicited sexual
acts, thus supporting the theory of his defense. After
Ingram testified in an offer of proof, the trial court
excluded that testimony, concluding that the incident
was ‘‘too remote in time’’ and ‘‘could lead to confusion
on the part of the jury.’’
The defendant’s claims arising from the exclusion of
the testimony of Veader and Ingram warrant only brief
discussion. First, we agree with the state that the defen-
dant’s claim that the trial court improperly granted what
was in essence an oral motion in limine in violation of
Practice Book § 42-15, which requires such motions to
be in writing, was not raised before the trial court.
Further, the defendant has not supplied analysis in his
brief indicating that this specific claimed lapse in the
rules of practice requires reversal under the plain error
doctrine; see Practice Book § 60-5; or, put differently,
‘‘is such an obvious error that it affects the fairness
and integrity of and public confidence in the judicial
proceedings.’’ (Internal quotation marks omitted.) State
v. Myers, 290 Conn. 278, 291, 963 A.2d 11 (2009); see
also id., 290 (‘‘[a] trial court’s failure to comply with a
rule of criminal procedure, without more, is insufficient
to require reversal for plain error’’). Accordingly, we
decline to review this claim.
Second, to the extent the defendant’s brief addresses
the trial court’s evidentiary rulings, it is largely inade-
quate. Although the defendant cites and quotes numer-
ous authorities on the topics of relevance, hearsay, and
the residual exception of § 8-9 of the Connecticut Code
of Evidence in an abstract manner, he does not specifi-
cally analyze the trial court’s ruling that Veader’s testi-
mony was inadmissible hearsay not subject to the
residual exception by applying law to fact. ‘‘Analysis,
rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the
issue properly.’’ (Internal quotation marks omitted.)
Connecticut Light & Power Co. v. Dept. of Public Utility
Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); see
also, e.g., Hartford/Windsor Healthcare Properties,
LLC v. Hartford, 298 Conn. 191, 194 n.4, 3 A.3d 56 (2010)
(‘‘[b]ecause the plaintiffs do not cite any authority or
develop their claim with analysis, we conclude that the
claim is inadequately briefed’’). We therefore will not
address the defendant’s claim to the extent it poses an
evidentiary challenge to the trial court’s decision to
exclude Veader’s testimony.
Insofar as the defendant’s brief adequately addresses
the trial court’s determination that Ingram’s testimony
was irrelevant, we disagree with his arguments. ‘‘[R]ele-
vant evidence is evidence that has a logical tendency
to aid the trier in the determination of an issue. . . .
All that is required is that the evidence tend to support
a relevant fact even to a slight degree, so long as it is
not prejudicial or merely cumulative. . . . The trial
court has wide discretion to determine the relevancy
of evidence and [e]very reasonable presumption should
be made in favor of the correctness of the court’s ruling
in determining whether there has been an abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Kalil, 314 Conn. 529, 540–41, 107 A.3d 343 (2014).
We agree with the state that the trial court did not abuse
its discretion in determining that Ingram’s testimony
about a single same sex sexual encounter eighteen years
prior to the homicide was irrelevant, particularly when
the state did not purport to challenge the defendant’s
assertion that the victim was homosexual.31 As the state
aptly observes, ‘‘the victim’s mere status as a homosex-
ual is no more probative of whether he is likely to have
engaged in nonconsensual sexual acts with another per-
son than would a defendant’s mere status as a hetero-
sexual be probative of such a tendency.’’ Accordingly,
we conclude that the trial court did not abuse its discre-
tion in determining that Ingram’s proffered testimony
was irrelevant.
Finally, because the defendant has failed to establish
that these evidentiary rulings by the trial court on the
basis of hearsay and relevance were improper, he can-
not establish that they deprived him of his sixth amend-
ment right to present a defense, which is an unpreserved
claim that he raises pursuant to State v. Golding, 213
Conn. 233, 239–40, 567 A.2d 823 (1989). ‘‘The federal
constitution require[s] that criminal defendants be
afforded a meaningful opportunity to present a com-
plete defense. . . . The sixth amendment . . .
includes the right to offer the testimony of witnesses,
and to compel their attendance, if necessary, [and] is
in plain terms the right to present a defense, the right
to present the defendant’s version of the facts as well
as the prosecution’s to the jury so that it may decide
where the truth lies. . . .
‘‘A defendant is, however, bound by the rules of
evidence in presenting a defense. . . . Although ex-
clusionary rules of evidence cannot be applied mecha-
nistically to deprive a defendant of his rights, the consti-
tution does not require that a defendant be permitted
to present every piece of evidence he wishes. . . .
Thus, our law is clear that a defendant may introduce
only relevant evidence, and, if the proffered evidence is
not relevant, its exclusion is proper and the defendant’s
right is not violated.’’ (Internal quotation marks omit-
ted.) State v. Tutson, 278 Conn. 715, 748, 899 A.2d 598
(2006). Accordingly, because the defendant has failed
to establish that the trial court improperly excluded the
testimony of Veader and Ingram, he similarly cannot
establish that the exclusion violated his right to present
a defense, and his claim fails under the third prong of
Golding. See, e.g., State v. Crespo, 303 Conn. 589, 614,
35 A.3d 243 (2012); State v. Davis, 298 Conn. 1, 10, 1
A.3d 76 (2010); State v. Tutson, supra, 750–51.
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER,
ZARELLA, McDONALD and VERTEFEUILLE, Js., con-
curred.
1
The defendant appeals directly to this court pursuant to General Statutes
§ 51-199 (b) (3).
2
We note that although § 53a-54a was amended in 2012; see Public Acts
2012, No. 12-5, § 7; that amendment has no bearing on the merits of this
appeal. In the interest of simplicity, we refer to the current revision of
the statute.
3
Wayne Carver, the state’s chief medical examiner, determined that the
multiple stab wounds had injured major blood vessels and organs, including
the heart, lungs, and liver, causing the victim’s death.
4
Feuerstein based his conclusion on information derived from three meet-
ings with the defendant, a conversation with a family member of the defen-
dant, and the review of numerous documents, including medical records
and the court and police files in this case. Feuerstein testified that the nature
of the victim’s multiple stab wounds, along with the defendant’s attempts
to calm himself down by smoking marijuana prior to the attack, indicated
that the attack was ‘‘the outcome of an extreme release of emotion’’ beyond
a simple desire to kill the victim. Feuerstein testified that the defendant
had a ‘‘significant history of violence’’ and psychiatric hospitalizations as
an adolescent, although there was no evidence that he ‘‘would be capable
of this . . . level of violence.’’ Feuerstein also testified that the defendant
had been the victim of sexual abuse as a child by his stepfather. Feuerstein
then related the defendant’s increasing discomfort with the victim in the
days and weeks leading up to the attack, although he acknowledged that
the defendant had not previously acted violently toward gay people.
5
Following this court’s decision in State v. Lewis, 245 Conn. 779, 819,
717 A.2d 1140 (1998), the trial court merged the defendant’s convictions of
felony murder and murder, and vacated the defendant’s sentence on the
felony murder count.
6
The defendant’s trial was prosecuted by two senior assistant state’s
attorneys assigned to the Waterbury judicial district, namely, Terrence Mari-
ani and Amy Sedensky. The defendant’s prosecutorial impropriety claims
arising from the questioning of Feuerstein solely concern the actions of
Attorney Mariani, while his claims arising from the summation and rebuttal
arguments solely challenge the actions of Attorney Sedensky. For the sake
of simplicity, all references to the prosecutor are phrased in the singular.
7
We note that the defendant’s briefing of the prosecutorial impropriety
issue is both confusing and incomplete. In particular, the defendant’s princi-
pal brief does not contain legal analysis corresponding to each of the prosecu-
torial questions or remarks identified in its statement of additional relevant
facts. To the extent that this opinion does not address any particular claimed
impropriety, it is because we consider those claims to be inadequately
briefed. We also note, however, that the defendant has provided brief legal
analysis with respect to some of those additional improprieties in his reply
brief. Notwithstanding our general refusal to address claims that are briefed
in this manner; see, e.g., State v. Devalda, 306 Conn. 494, 519 n.26, 50 A.3d
882 (2012); we exercise our discretion to review them on their merits in
the present case because the state has responded to those claimed improprie-
ties and, therefore, has not been prejudiced by this manner of briefing.
8
‘‘Once prosecutorial impropriety has been alleged . . . it is unnecessary
for a defendant to seek to prevail under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to
review the defendant’s claim under Golding.’’ (Internal quotation marks
omitted.) State v. Wilson, 308 Conn. 412, 434 n.7, 64 A.3d 91 (2013).
9
In context, after discussing the defendant’s hospitalization in 2003, when
he was approximately fifteen years old, the prosecutor ‘‘jump[ed] forward
to’’ June, 2009, and asked Feuerstein a lengthy series of questions about
his awareness of the defendant’s psychiatric history leading up to the time
of the attack on the victim, including about whether the defendant had been
candid about certain hospital visits occasioned by threatening behavior. The
prosecutor asked Feuerstein, inter alia, whether the defendant’s failure to
discuss those instances created ‘‘some concern about the reliability of the
information that he conveyed to you.’’ The following colloquy then occurred:
‘‘[Feuerstein]: I always felt and always feel in cases like this that I don’t
always have 100 percent of the information. I knew that the information I
got from him wouldn’t be 100 percent reliable. I feel that compared to other
similar situations, his story meshed very consistently with the other versions
I had. If I had asked him about emergency room visits, he may have told
me, but I didn’t—and I don’t have a recording of my session with him, so
I can’t explicitly say.
‘‘[The Prosecutor]: Would . . . your impressions of him based on your
interviews . . . change in any significant way if you knew that just weeks
before this homicide his friends had to take the knife away from him so
that he didn’t go and stab his girlfriend?
‘‘[Feuerstein]: Is the question would I be surprised?
‘‘[The Prosecutor]: No, would that [a]ffect your impression of him based
upon your interviews? No, it seems to me—
‘‘[Feuerstein]: Well, it would have . . . made me think about possible
underlying psychiatric diagnoses. It would be inconsistent with him wanting
to kill this person. But I guess, generally speaking, he has no history of
violence. So . . . it’s not irrelevant is what I’m saying, but it wouldn’t change
my impression.
‘‘[The Prosecutor]: Would it be a fact that you would have wanted to
know about before you came in here and testified about what may or may not
have been going through his mind back around the time this was happening?
‘‘[Feuerstein]: Yeah, I would have explored it in more detail.
‘‘[The Prosecutor]: Sure. Because, I mean, maybe he’s just a mean and
nasty person who was looking to kill somebody.
‘‘[Defense Counsel]: Objection, Your Honor.
‘‘The Court: Sustained. The jury should disregard the question.
‘‘[The Prosecutor]: Would you be interested in the fact that he was making
threats to kill other people around the time that he killed [the victim]?
Wouldn’t that inform your opinion about what was going through his head
at the time of this particular murder?
‘‘[Feuerstein]: It would have been data that would have been useful and
been worth exploring, yes.’’ (Emphasis added.)
10
The defendant responds to the state’s argument contextualizing the
‘‘mean and nasty’’ remark by asking whether ‘‘there [is] a way to call someone
‘mean and nasty’ as a compliment?’’ It bears noting that the phrase ‘‘mean
and nasty’’ is relatively tame in the grand scheme of the invective considered
in our voluminous prosecutorial impropriety jurisprudence. See, e.g., State
v. Williams, supra, 204 Conn. 546–47 (prosecutor called defendant, inter
alia, ‘‘ ‘child-beater,’ ‘baby-beater’ and ‘infant-thrasher,’ ’’ as well as ‘‘ ‘a liar,’
‘drunken drug-user, convicted felon, child beater,’ ’’ and referred to principal
defense witness as ‘‘ ‘liar,’ ‘stupid,’ an ‘evil woman,’ and an ‘evil, terrible
woman’ ’’); State v. Couture, 194 Conn. 530, 560–61, 482 A.2d 300 (1984)
(prosecutor described defendants as ‘‘ ‘murderous fiends,’ ‘rats,’ ‘utterly
merciless killers’ and ‘inhumane, unfeeling and reprehensible creatures’ ’’),
cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Neverthe-
less, the relative severity of the improper comment is a factor to be consid-
ered in the ultimate due process analysis. See part I D of this opinion.
11
Thus, we disagree with the defendant’s reliance on State v. Heredia,
253 Conn. 543, 565, 754 A.2d 114 (2000), and State v. Warholic, supra, 278
Conn. 354, wherein this court deemed the challenged prosecutorial remarks
to be improper emotional appeals intended to invoke the fears of the jury.
See State v. Warholic, supra, 374–75 (The prosecutor stated: ‘‘ ‘The evidence
proves that [the defendant] is the child molester that he’s accused of being.
They’re out there. They’re among us.’ ’’ [Emphasis omitted.]); State v. Here-
dia, supra, 558 (prosecutor challenged defendant’s attempts to appear naive
and harmless in court by saying that: ‘‘ ‘[i]f I loaded that gun and shut out
the lights in this courtroom and put it in his hand, I think everybody would
have a very different perception of how dangerous he is’ ’’ [emphasis omit-
ted]). Heredia and Warholic are inapposite because the defendant’s identity
as the perpetrator of the offenses charged was at issue therein; in the present
case, it was uncontested that the defendant committed the homicidal act
at issue.
12
We respectfully disagree with the concurring justice’s opinion that the
‘‘mean and nasty person’’ comment ‘‘was not gratuitously pejorative, but
rather an inartful and poorly crafted expression within a valid line of ques-
tioning,’’ and that ‘‘the prosecutor’s otherwise entirely proper and on point
comment is improper simply due to words he happened to employ while
under the pressure of cross-examining a witness.’’ Although we recognize
that the process of an attorney, or judge, thinking quickly on their feet at
trial might lead to remarks that seem regrettable on later review in a printed
transcript, and that we do not want to supplant zealous advocacy with, as
the concurring justice calls it, ‘‘overcautious and ineffective advocacy,’’ we
nevertheless emphasize that the prosecutor has a greater systemic and
official responsibility to seek impartial justice than does an ordinary advo-
cate, and that whether an impropriety is intentional or accidental does not
affect whether it deprived a defendant of a fair trial. See, e.g., State v. Angel
T., 292 Conn. 262, 282 n.14, 973 A.2d 1207 (2009) (‘‘[t]he touchstone of due
process analysis in cases of alleged prosecutorial misconduct is the fairness
of the trial, and not the culpability of the prosecutor’’ [internal quotation
marks omitted]).
Further, in a comment on the apparent proliferation of prosecutorial
impropriety claims in criminal appeals; see, e.g., State v. Jarrett, 82 Conn.
App. 489, 501, 845 A.2d 476 (‘‘[p]rosecutorial misconduct has become the
criminal equivalent of the [Connecticut Unfair Trade Practices Act] claim’’
[footnote omitted]), cert. denied, 269 Conn. 911, 852 A.2d 741 (2004); the
concurring justice expresses her concern that ‘‘lightly labeling minor prose-
cutorial missteps as improper also undermines the seriousness of claims
brought by those defendants that have experienced egregious violations of
their constitutional rights due to improper prosecutorial behavior.’’ To this
end, the concurring justice also observes that treating apparently minor
missteps as improper ‘‘serves to diminish the gravity with which an appellate
court should evaluate severe prosecutorial improprieties and cheapens
claims of seriously prejudicial due process violations.’’ We respectfully dis-
agree. The well settled principles under which we consider prosecutorial
impropriety claims do not treat all claims of impropriety as equal insofar
as they accommodate both for the severity of the impropriety and its relative
effect in any given case in determining whether reversal is required. See,
e.g., State v. Ciullo, 314 Conn. 28, 57–58, 100 A.3d 779 (2014); see also
part I D of this opinion. Whether, given these principles, a prosecutorial
impropriety claim is an effective strategic use of limited briefing space in
a given criminal appeal is a question that is the prerogative of appellate
defense counsel, rather than this court, to answer.
13
The full context of this exchange between the prosecutor and Feuerstein
was as follows:
‘‘Q. . . . You would agree with me, wouldn’t you, that the substance of
your testimony here is not really based on any hard science. Fair enough
to say?
‘‘A. It depends on what you mean by ‘hard science.’
‘‘Q. Did you have any data that supports your conclusions?
‘‘A. Well, clinical evaluations rely on a lot of data.
‘‘Q. Okay. Well, let me ask this: Did you administer any science—any test
to him, any personality tests?
‘‘A. No.
‘‘Q. And those are part of the psychiatric arsenal, so to speak, like the
[Minnesota Multiphasic Personality Inventory], Rorschach tests—there’s a
whole battery of tests that psychiatrists use to evaluate people. Is that true?
‘‘A. If they’re relevant, yes.
‘‘Q. Okay. Were any of those tests given to him?
‘‘A. No.’’ (Emphasis added.)
14
This question arose in the following context:
‘‘[The Prosecutor]: Sure. Now, I want to ask you just a little bit about
didn’t [the defendant] indicate in his statement that there was a fight between
the two of them over money?
‘‘[Feuerstein]: I really thought the fight was about not purchasing beer,
but I . . . guess it could be interpreted as a fight over money.
‘‘[The Prosecutor]: Well, let’s take it step-by-step. Did he tell you and were
you aware that in the records supposedly [the victim] gave the defendant
$10 to go purchase beer? . . .
‘‘[Feuerstein]: Yes. Yes, I was aware of that.
‘‘[The Prosecutor]: Sure. And that he didn’t go buy the beer?
‘‘[Feuerstein]: Yes.
‘‘[The Prosecutor]: He went and bought marijuana for himself?
‘‘[Feuerstein]: Yes.
‘‘[The Prosecutor]: And you’re aware of the fact that these people are
homeless, right?
‘‘[Feuerstein]: Yes.
‘‘[The Prosecutor]: So $10 might mean kind of a little bit more to them
than somebody who’s getting $300 an hour, right? I mean, $10 could be a
lot of money?
‘‘[Feuerstein]: He was buying a beer with it. He was supposed to buy a beer.
‘‘[The Prosecutor]: Sure, but he didn’t buy the beer.
‘‘[Feuerstein]: No, but I guess my point is . . . the level of importance
. . . I would relate to what the money was to be spent on. Had it . . . been
I was to get food because we were starving is very different than go to the
store and get a beer, so . . . both the facts and the way he described it
seemed to indicate—and by facts I mean the police reports and other itera-
tions which, as you point out, come from the defendant’s mouth—didn’t
seem to indicate that the money was to be spent on some particularly
important item whether you’re rich or poor.
‘‘[The Prosecutor]: Okay. Let me ask you if you can agree with this: That
potentially one of the disagreements between the two of them [was] the
spending of that $10?
‘‘[Feuerstein]: Yes.
‘‘[The Prosecutor]: Okay. Did you ask him if the fight was about that?
‘‘[Feuerstein]: I didn’t have to because he acknowledged that he didn’t
buy it and he let [the victim] know he didn’t buy it when he got back, so
it was clear that that was . . . an entry point to the discussion about whether
or not he had, in fact, sexually violated him. He . . . described it, that it
was part of the argument, so . . . it didn’t have to be—I’m not sure if I’m
not being clear, but he . . . just acknowledged that he didn’t buy it and
that he went back and told him he didn’t buy it.
‘‘[The Prosecutor]: Did you say to him, how do we know the fight wasn’t
about the $10?
‘‘[Feuerstein]: . . . The facts of the eventual outcome don’t in any way
relate to . . . an argument even among very poor people over $10.
‘‘[The Prosecutor]: . . . Well, let me ask you this: Have you heard about
people killing each other over parking spaces? You’ve heard of that, right?
‘‘[Feuerstein]: Yes.
‘‘[The Prosecutor]: I mean, the fact that $10 is a—
‘‘[Feuerstein]: I’m not sure it happens, but I’ve heard people say it.
‘‘[The Prosecutor]: Sure. [Ten dollars] may not be a good reason to get
in a fight where you end up killing somebody, but it happens, right?
‘‘[Feuerstein]: You know . . . I guess it can happen.
‘‘[The Prosecutor]: Sure. And I guess what I’m—
‘‘[Defense Counsel]: Your Honor, I’d object. That’s an inappropriate state-
ment. These are gratuitous comments that are not questions. They should
be disregarded by the jury.
‘‘The Court: Sustained. The jury should disregard that question.
‘‘[The Prosecutor]: I’m asking you this: Did you consider that the motiva-
tion for this murder was a fight over the $10 and not this—
‘‘[Feuerstein]: I . . . considered any—
‘‘[The Prosecutor]: I’m not finished, please—and not this claim of sex-
ual abuse?
‘‘[Feuerstein]: Yes, I considered it could have been any number of things.
‘‘[The Prosecutor]: And did you push him on that?
‘‘[Feuerstein]: I’m not sure what you mean by push him on that.
‘‘[The Prosecutor]: Hey, come on. It was about the $10. It wasn’t about
that.’’
15
Prosecutorial disobedience of court orders may result in reversal of a
defendant’s conviction on either of two doctrinal grounds. First, the disobedi-
ence may result in a due process violation that deprives the defendant of
his right to a fair trial. Alternatively, the disobedience, if done deliberately
or in bad faith, may justify reversal as a sanction pursuant to the appellate
courts’ supervisory powers. See, e.g., State v. Warholic, supra, 278 Conn.
406–407 and 407 n.30; State v. Ubaldi, 190 Conn. 559, 570–73, 462 A.2d 1001,
cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). For
additional discussion of reversal pursuant to our supervisory powers, see
footnote 24 of this opinion.
16
See also, e.g., State v. McLaren, 127 Conn. App. 70, 81–82, 15 A.3d 183
(2011) (improper for prosecutor to ask about specific inculpatory comment
in police report, and refer to it during summations, when trial court had
granted motion in limine deeming that comment highly prejudicial double
hearsay); State v. Jose G., 102 Conn. App. 748, 767–68, 929 A.2d 324 (2007)
(prosecutor improperly violated court orders barring questions about ‘‘Sir-
chie’’ rape kit because no such kit had been used in case, but violations,
which occurred several times during trial, were not frequent or severe),
aff’d, 290 Conn. 331, 963 A.2d 42 (2009); State v. Dews, 87 Conn. App. 63,
79–80, 864 A.2d 59 (use of stricken testimony resulting from ‘‘confusion or
mistake’’ not impropriety), cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).
17
A stage whisper is ‘‘a loud whisper by an actor that is audible to the
spectators but is supposed for dramatic effect not to be heard by one or
more of the actors . . . .’’ Merriam-Webster’s Collegiate Dictionary (11th
Ed. 2003).
18
In full context, we note that the state attempted to admit into evidence
certain medical records arising from the defendant’s visit to the Waterbury
Hospital emergency room in May, 2009, and then question Feuerstein about
whether their content would affect his opinion of the defendant. The trial
court sustained the defendant’s objection to these records, but ruled that
it would afford the state some ‘‘leeway on the cross-examination’’ because
the records had been disclosed by the defendant to the state, albeit not
reviewed by Feuerstein. The challenged exchange occurred shortly
thereafter.
19
In Floyd, this court considered the trial court’s authority to permit
hypothetical questions of expert witnesses, and concluded that ‘‘[t]he deter-
mination of the admissibility of a hypothetical question, at least except in
extreme cases, is not to be made by the application of any rule of thumb.
. . . Rather, it calls for the exercise of a sound discretion as to whether
the question, even though it does not contain all of the facts in evidence,
presents the facts in such a manner that they bear a true and fair relationship
to each other and to the whole evidence in the case . . . is not so worded
as to be likely to mislead or confuse the jury; and is not so lacking in the
essential facts as to be without value in the decision of the case.’’ (Citations
omitted.) Floyd v. Fruit Industries, Inc., supra, 144 Conn. 666; see also
State v. David N.J., 301 Conn. 122, 133–34, 19 A.3d 646 (2011) (applying
rule from Floyd and citing commentary to Connecticut Code of Evidence
§ 7-4 [c] for proposition that rule is ‘‘ ‘applied with increased liberality when
the hypothetical question is framed on cross-examination and for the pur-
pose of impeaching and testing the accuracy of the expert’s opinion testi-
mony given on direct examination’ ’’).
20
We note that, at this point, the defendant moved for a mistrial, claiming
that it was warranted because of the medical records comment and the
prosecutor’s failure to adhere to the evidentiary ruling. The trial court denied
the motion. See part II of this opinion.
21
Practice Book § 40-12 provides in relevant part: ‘‘Upon written request
by a defendant . . . the judicial authority may direct the prosecuting author-
ity to disclose in writing to the defendant and make available for inspection,
photographing, copying and reasonable testing any other relevant material
and information not covered by Section 40-11 which the judicial authority
determines on good cause shown should be made available.’’
22
At trial, the court initially expressed its concern about this line of
questioning on the ground that the prosecutor had not complied with § 7-
4 of the Connecticut Code of Evidence by phrasing the questions as hypothet-
icals. Defense counsel, however, stated that his concern was that the state
had failed to advise him, in response to his motion seeking the disclosure
of uncharged misconduct, ‘‘of a threat that was made by my client to his
girlfriend involving a knife in which the knife was removed from his physical
being.’’ After the state argued that the trial court previously had barred it
from offering evidence of that event, the trial court directed the state to
ask the questions in the form of a hypothetical, with a witness to testify to
that point during the state’s rebuttal case.
With respect to the disclosure issue, the state contended that its obligation
was limited to uncharged misconduct to be offered during its case-in-chief
to prove motive, identity, or corroborate crucial prosecution testimony, and
that it could appropriately use the misconduct to challenge Feuerstein during
cross-examination. The defendant, however, argued that the state was engag-
ing in ‘‘trial by ambush’’ because he was unaware of the information, despite
the state’s prior disclosures and the open file policy. Accordingly, the defen-
dant moved for a mistrial. In response, the state argued that information
about the hospital visit was contained in the medical records that had been
disclosed by the defendant, but acknowledged that the knife incidents were
obtained from witness interviews with the defendant’s friends, which were
not conveyed to the defendant because the state did not deem it to be
‘‘criminal behavior’’ or offer it during the case-in-chief.
23
In the additional facts section of his brief, the defendant also recites
numerous other comments during the prosecutor’s closing and rebuttal
arguments that he claims are improper. The defendant does not, however,
provide any analysis in his brief supporting a claim that those particular
arguments were in fact improper. Accordingly, we view the defendant’s
citation to those arguments as intended to support his claim, in the due
process analysis, that the prosecutors ‘‘capitalized’’ on misconduct during
Feuerstein’s cross-examination by using that impropriety to support themes
developed during summations.
24
The defendant also asks us to use our supervisory powers over the
administration of justice to reverse his conviction. As an alternative to
concluding that prosecutorial impropriety deprived a defendant of a fair
trial in a particular case, ‘‘we exercise our supervisory authority in this
context to redress repeated and deliberate misconduct by a prosecutor
seeking to increase the likelihood of conviction even though that conduct
does not necessarily require reversal as a due process violation. . . . [W]e
pay particular attention to the fact that the prosecutor knew or should have
known that the conduct was improper and was part of a pattern of similar
misconduct in other cases. We exercise our supervisory authority in order
to protect the rights of defendants and to maintain standards among prosecu-
tors throughout the judicial system rather than to redress the unfairness of
a particular trial. We do so in order to send a strong message that such
conduct will not be tolerated.’’ (Internal quotation marks omitted.) State v.
Payne, 260 Conn. 446, 451–52, 797 A.2d 1088 (2002). Reversal under our
supervisory authority is an appropriate response to deliberate prosecutorial
impropriety that ‘‘is so offensive to the sound administration of justice that
only a new trial can effectively prevent such assaults on the integrity of the
tribunal.’’ State v. Ubaldi, supra, 190 Conn. 575.
Consistent with the ‘‘elephant in the room’’ at oral argument before this
court, the defendant cites State v. Santiago, 143 Conn. App. 26, 27, 66 A.3d
520 (2013), wherein the Appellate Court recently utilized its supervisory
powers to reverse a murder conviction on the ground that Attorney Mariani,
the prosecutor who cross-examined Feuerstein in the present case, ‘‘has
engaged in a deliberate pattern of improper conduct in this case and others,
and he remains undeterred by pronouncements by [the Appellate Court]
and our Supreme Court that his conduct was improper, we believe that
nothing short of reversal will have the effect of deterring him.’’ Given the
relatively minor nature of the impropriety identified in the present case,
and the fact that the defendant has not identified a post-Santiago wave of
deliberate impropriety by Attorney Mariani that requires another reversal
for deterrent or sanctioning purposes, we decline to exercise our supervisory
powers to reverse this conviction, notwithstanding Attorney Mariani’s choice
of an advocacy style that renders him a prosecutorial Icarus flying near the
sun of reversible impropriety.
25
The defendant also includes in his brief a discussion and citations to
case law suggesting that the trial court abused its discretion by admitting
the uncharged misconduct into evidence. The defendant does not, however,
identify any such ruling by the trial court admitting such evidence; indeed,
the trial court struck such references from the record and directed the jury
not to consider them. Accordingly, we decline to consider this claim as one
challenging an evidentiary ruling.
26
The defendant also cites the testimony of Jason Benoit, who, while
testifying about the events of the day when the defendant confessed to
killing the victim, mentioned—without prompting from the prosecutor—
that the defendant ‘‘showed up at my house alone and he came inside, we
smoked some weed, sat down and talked and that’s when he broke down
and told me what had happened.’’ After some discussion between the parties
and the trial court about this testimony given a motion in limine addressing
marijuana use, the defendant declined the offer of a curative instruction
and the prosecutor represented that she would admonish Benoit and other
witnesses not to talk about the posthomicide marijuana topic in future
testimony. Defense counsel did not, however, move for a mistrial with
respect to Benoit’s testimony about the marijuana, and has not specifically
included it as a ‘‘cumulative’’ ground for a mistrial before the trial court.
Accordingly, we decline to consider it further in this opinion.
27
Defense counsel then assented to the trial court’s proposal not to draw
specific attention to Innaimo’s comment, but simply to ‘‘make one general
comment to you. You should understand clearly that the defendant here is
on trial only for the crimes charged in the information not for any other
activities. I just want to make that statement to you.’’
28
The trial court instructed the jury that: ‘‘You heard no evidence that
the defendant threatened to kill or stab his girlfriend. You can’t consider it
in any way at this point.
‘‘Second, the issue of reasonableness of the defendant’s actions is a ques-
tion for you, the jury, to determine. Any questions and answers during the
state’s cross-examination related to the issue of the reasonableness of the
defendant’s action you cannot consider in any way and those questions and
answers have been stricken from the record.
‘‘Finally, the evidence that you can consider are the responses of the
witnesses. The questions that are asked are not evidence. It’s the responses
that are the evidence and the full exhibits that you will have to consider
during your deliberation. Questions, arguments are not evidence. The evi-
dence is the answers to the questions that are posited by the attorneys.’’
29
We note that it is undisputed that the defendant preserved this claim
through a motion for a judgment of acquittal, which the trial court denied.
30
Practice Book § 42-15 provides: ‘‘The judicial authority to whom a matter
has been referred for trial may in its discretion entertain a motion in limine
made by either party regarding the admission or exclusion of anticipated
evidence. Such motion shall be in writing and shall describe the anticipated
evidence and the prejudice which may result therefrom. The judicial author-
ity may grant the relief sought in the motion or such other relief as it may
deem appropriate, may deny the motion with or without prejudice to its
later renewal, or may reserve decision thereon until a later time in the pro-
ceeding.’’
31
We disagree with the defendant’s argument that it is ‘‘impossible to
meaningfully distinguish between the allowed testimony of [Trazanda]
Brown concerning a homosexual encounter of the defendant, and the testi-
mony of Ingram, concerning a homosexual encounter with the victim.’’
Brown, a friend of the defendant and the victim, testified that the defendant
did not react adversely to learning that he had danced with and kissed a
man who was dressed as a woman at a party. The trial court reasonably
could have determined that the defendant’s reaction to a same sex sexual
encounter was relevant to whether a sexual advance by the victim would
have triggered an extreme emotional disturbance. In contrast, the victim’s
sexual orientation, which was implicated by Ingram’s testimony, was not a
disputed factual issue in this case.