State v. Papantoniou ( 2018 )

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STATE OF CONNECTICUT v. NICHOLAS J.
PAPANTONIOU
(AC 40554)
Lavine, Elgo and Bright, Js.
Syllabus
Convicted of the crimes of felony murder, burglary in the first degree and
criminal possession of a firearm in connection with the death of the
victim, the defendant appealed. He claimed, inter alia, that his rights
under article first, § 8, of the Connecticut constitution to be present at
trial and to confront the witnesses against him were violated when
the prosecutor made a generic tailoring argument during her closing
argument to the jury. The defendant and his accomplice, C, had driven
to the victim’s apartment with the intent to rob him. A physical struggle
ensued, during which the victim was shot, cut and stabbed with a knife.
Investigators recovered a sweatshirt and a hat near the victim’s body.
DNA evidence that was taken from the sweatshirt matched the defen-
dant’s DNA profile, and the defendant’s DNA and that of the victim were
found on the hat. The defendant was the final witness called by the
defense to testify at trial. His testimony conflicted in certain respects
with that of C, who had testified previously. The prosecutor stated
during her closing argument that the defendant had listened and had
access to all of the evidence that was presented to the jury, and that
he had attempted to create a story of his version of the events at issue
that fit all of the evidence. Held:
1. The defendant could not prevail on his unpreserved claim that the prosecu-
tor’s alleged generic tailoring argument violated his rights under article
first, § 8, of the Connecticut constitution; the strength of the state’s
case, standing alone, rendered the alleged error harmless beyond a
reasonable doubt, as the state presented an overwhelming case that
included, inter alia, DNA evidence, and testimony from C and the defen-
dant that the defendant was involved in the victim’s death, the defendant
conceded on appeal that the evidence supported a conclusion that he
had held a pistol when it fired twice during the struggle with the victim,
and even if the prosecutor’s remarks violated the defendant’s state
constitutional rights, they did not influence the outcome of the trial.
2. The defendant failed to prove that certain of the prosecutor’s remarks
during closing argument to the jury violated his rights to due process
and a fair trial; although the defendant did not invite the prosecutor’s
comments suggesting that the firearm in the defendant’s possession
could not have fired accidentally twice during the struggle with the
victim and that the defendant called his lawyer instead of calling 911
immediately after the shooting, defense counsel did not object to either
set of remarks, which were isolated, not egregious and did not concern
critical issues in the case, and the evidence of the defendant’s guilt was
overwhelming, and even if the prosecutor’s remarks were improper,
they were not so serious as to deprive the defendant of his rights to
due process and a fair trial.
3. The defendant could not prevail on his claim that the prosecutor’s alleged
generic tailoring remarks deprived him of his general due process right
to a fair trial, as the strength of the state’s case, standing alone, demon-
strated that the remarks, even if improper, were not so serious as to
deprive the defendant of his rights to due process and a fair trial;
moreover, defense counsel did not object to the prosecutor’s remarks,
defense counsel’s remarks to the jury invited the prosecutor to respond
by arguing that the defendant might have been trying to save himself
by concocting his story to the jury, the prosecutor’s comments on the
defendant’s presence at trial were limited to two brief instances during
her rebuttal argument and were not severe, the trial court instructed
the jury that arguments of counsel were not evidence, and the state’s
case did not hinge on a credibility contest between C and the defendant,
as the jury reasonably could have inferred from the evidence, without
regard to C’s testimony, that the defendant unlawfully had entered or
remained in the victim’s apartment with the intent to rob him.
Argued April 10—officially released September 25, 2018
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, burglary in the first degree
and criminal possession of a firearm, brought to the
Superior Court in the judicial district of New Haven and
tried to the jury before Blue, J.; verdict and judgment
of guilty, from which the defendant appealed. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom were Stacey M. Miranda, senior assis-
tant state’s attorney, and, on the brief, Patrick J.
Griffin, state’s attorney, and Karen A. Roberg, assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Nicholas J. Papantoniou,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of felony murder in violation of
General Statutes § 53a-54c, burglary in the first degree
in violation of General Statutes § 53a-101 (a) (1), and
criminal possession of a firearm in violation of General
Statutes § 53a-217 (a) (1). On appeal, the defendant
claims that the state (1) violated his rights to be present
at trial and to confront the witnesses against him under
article first, § 8, of the Connecticut constitution1 when
the prosecutor made a ‘‘generic tailoring’’ argument
during closing remarks, and (2) violated his constitu-
tional rights to due process and a fair trial by committing
prosecutorial improprieties. We affirm the judgment of
the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. At approximately 12:30 p.m. on October 19,
2014, William Coutermash2 drove to 397 Circular Ave-
nue in Hamden; the defendant accompanied him. Larry
Dildy, the victim, lived in the second floor apartment
of a multifamily house located at 397 Circular Avenue
with his wife, Vivian Dildy (Vivian), and their daughter,
Ashante Dildy (Ashante). The victim was a known drug
dealer, and according to Coutermash, he and the defen-
dant went to the victim’s apartment with the intent to
rob him.3 More specifically, Coutermash said the plan
was to ‘‘flash a gun in the [victim’s] face’’ in an attempt
to ‘‘get either drugs or money’’ from him.
When Coutermash and the defendant arrived, Cou-
termash parked his vehicle—a black Jeep with New
York license plates—near the victim’s driveway and
handed the defendant gloves and a handgun. According
to Coutermash, the defendant then exited the vehicle
‘‘to get drugs or money’’ and also was armed with a
knife.4 The defendant, who was wearing a gray
sweatshirt, a tan hat, and sunglasses, then proceeded
to the back door of the victim’s apartment. Coutermash
testified that he stayed in his Jeep.
Vivian was home at the time, and according to her,
one ‘‘intruder’’ entered the apartment through the apart-
ment’s locked back door after the force of his knocking
opened it. She described the intruder as wearing a grey
‘‘sweat jacket’’ and a yellow or beige hat. Shortly there-
after, Vivian saw the lone intruder pointing a gun at the
victim, heard him say something that ‘‘sounded like give
it up,’’ and called 911 at her husband’s request. Ashante,
who was hiding in her room when the intruder entered
the apartment, also heard a single, ‘‘raspy’’ male voice
say that ‘‘he needed the $400 and the pill,’’ and over-
heard her father respond that ‘‘[he] didn’t have it.’’ After
the victim and the intruder argued for a period of time,
a physical fight ensued, and the two men struggled over
the intruder’s gun. During the struggle, the victim pulled
off the intruder’s sweatshirt, and Vivian struck the
intruder over the head with a broom handle before she
ran to a separate room. Vivian then heard two gunshots,5
and the intruder quickly fled the apartment.
Minutes after the defendant had exited the Jeep, Cou-
termash observed emergency personnel arriving and
decided to drive away from the area. As he did so, he
encountered the defendant on a nearby street, picked
him up, and the two left the scene. The victim had
been shot, cut, and stabbed multiple times during the
altercation; he was taken to a hospital and died from
his injuries.
During the ensuing police investigation, investigators
recovered various items located on the floor near the
victim’s body, including a grey hooded sweatshirt, a
tan hat, sunglasses, and a knife. Subsequent scientific
testing revealed that DNA6 evidence taken from the grey
sweatshirt matched the defendant’s DNA profile, which
was contained in a national database of DNA.7 That
same testing eliminated Coutermash as a source of the
DNA found on the grey sweatshirt. Scientific testing
of the tan hat also revealed the presence of both the
defendant’s and the victim’s DNA.8 Finally, surveillance
cameras near the victim’s apartment captured the
defendant discarding gloves and a handgun shortly after
the shooting.9
By way of an amended long form information, the
state charged the defendant with felony murder, bur-
glary in the first degree, and criminal possession of a
firearm.10 Following the jury’s verdict of guilty on all
counts, the trial court rendered judgment and sentenced
the defendant to a term of imprisonment of forty-five
years on the felony murder conviction, a concurrent
sentence of twenty years imprisonment on the burglary
conviction, and a concurrent sentence of ten years
imprisonment on the criminal possession of a firearm
conviction, for a total effective sentence of forty-five
years imprisonment. This appeal followed. Additional
facts and procedural history will be set forth as nec-
essary.
I
We first address the defendant’s claim that the state
violated his rights to be present at trial and to confront
the witnesses against him. He argues that the state
violated these specific constitutional rights when the
prosecutor made a ‘‘generic tailoring’’11 argument during
closing remarks to the jury. He concedes that the state is
permitted to make such an argument under the federal
constitution,12 but according to him, the state may not
do so in accordance with article first, § 8, of the Con-
necticut constitution.13 He did not assert this claim at
trial and therefore raises it under the familiar rubric of
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015). In response, the state con-
tends that the defendant’s unpreserved constitutional
claim fails to satisfy both the third and fourth prongs
of Golding. Because we conclude that the alleged con-
stitutional violation, if any, was harmless beyond a rea-
sonable doubt, we agree that the defendant’s claim fails
to satisfy Golding’s fourth prong.14
The following additional facts and procedural history
are relevant to this claim. The defendant testified at
trial and was the final witness called by the defense.
His testimony, in certain respects, conflicted with Cou-
termash’s testimony. According to Coutermash, the vic-
tim did not owe him money, and he remained in his Jeep
when the defendant went to the victim’s apartment.
The defendant testified that, on October 19, 2014, Cou-
termash told him that he needed to ‘‘collect some
money’’ from someone. See footnote 3 of this opinion.
In contrast to Coutermash, the defendant claimed that
when he and Coutermash arrived at 397 Circular Ave-
nue, both of them entered the victim’s apartment, and
Coutermash demanded $400 from the victim. The defen-
dant testified that he entered the victim’s apartment
only after Coutermash and the victim began fighting
and when things were ‘‘getting out of control . . . .’’
Upon entering the apartment, the defendant told the
victim: ‘‘[L]isten, just give [Coutermash] his money—
you know—let me get the hell out of here, just give
him what you owe him, it’s gone far enough, it’s out
of control, just give him his money, you know.’’ The
defendant further testified that, immediately after he
told the victim to give Coutermash money, Coutermash
fled the apartment. At that point, the defendant claimed
that the victim charged at him, the two began to struggle
over the gun in his hand, and the gun ‘‘went off’’ twice
during the struggle.
During closing argument, counsel for the defendant
began by stating that ‘‘this case . . . comes down to
two witnesses, really, [the defendant] and [Cou-
termash]. They told two divergent stories, and the state
told you that they’re relying on . . . Coutermash.’’
Counsel for the defendant also argued in relevant part:
‘‘Now, we talked a little about this a little while ago,
that is, that the state goes second. I have to do my best
to anticipate their arguments. The state is very creative;
I’m sure I will not think of everything they’re going to
think of. So, here’s some food for thought. They may
argue that [the defendant] is trying to save himself by
concocting this story. My response to that is, refer back
to the undisputed evidence. Which version is a concoc-
tion, and which one is closer to reality, based on the
evidence?’’
The prosecutor then opened her rebuttal argument
by stating in relevant part: ‘‘So, the defendant wants
you to believe—or disbelieve every single thing you
heard, except the defendant. Disbelieve all of it, and
certainly ignore the actual eyewitness to this because
her version doesn’t fit what we’re trying to do here.
Her version doesn’t fit what we’re trying to tell you.
‘‘Keep in mind, the defendant has had access to all
of the evidence, all of the testimony, all of the photo-
graphs, every single piece of information that was
presented to you, [and] the defendant was able to sit
there and listen to and come up with his version.
‘‘The defense attorney asked all of you on voir dire,
and he just asked you again, whether you believe that
someone can lie to gain a benefit. Do you? You all said
yes. Who has the biggest benefit to gain here at this
moment? Don’t you find it very convenient that the
defendant’s story is that he was just a mere bystander
in all of this? He was forced to come up by [Cou-
termash], his friend, who just wanted him to have his
back, so he did. . . .
‘‘He attempts to create a story that fits all of the
evidence, and his attempts at that you can’t deny is
flawed. He gets an A for effort, but it’s not going to
work because the evidence shows you that this version
makes zero sense.’’ (Emphasis added.)
The defendant contends that the prosecutor’s
remarks during rebuttal amounted to a ‘‘generic tai-
loring’’ argument that violated his state constitutional
rights. He seeks review of his unpreserved state consti-
tutional claim under State v. Golding, supra, 213 Conn.
233. ‘‘[A] defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitu-
tional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the constitu-
tional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the defendant’s
claim will fail. The appellate tribunal is free, therefore,
to respond to the defendant’s claim by focusing on
whichever condition is most relevant in the particular
circumstances.’’ (Emphasis in original; footnote omit-
ted.) Id., 239–40.
Even if we assume, without deciding, that the defen-
dant could meet the factors set forth in State v. Geisler,
222 Conn. 672, 684–86, 610 A.2d 1225 (1992), to demon-
strate that the alleged constitutional violation occurred;
see footnote 13 of this opinion; we nevertheless con-
clude that the state has proved that the alleged constitu-
tional violation was harmless beyond a reasonable
doubt. ‘‘[T]here may be some constitutional errors
which in the setting of a particular case are so unimport-
ant and insignificant that they may, consistent with
the [f]ederal [and state] [c]onstitution[s], be deemed
harmless, not requiring the automatic reversal of the
conviction. . . . The state has the burden to prove that
this error was harmless beyond a reasonable doubt.
. . . The focus of our harmless error inquiry is whether
the state has demonstrated that the otherwise improper
comments did not influence the outcome of the trial.’’
(Citations omitted; internal quotation marks omitted.)
State v. A. M., 324 Conn. 190, 204, 152 A.3d 49 (2016);
see also State v. Cassidy, 236 Conn. 112, 129, 672 A.2d
899 (impermissible ‘‘generic tailoring’’ argument subject
to harmless error), cert. denied, 519 U.S. 910, 117 S. Ct.
273, 136 L. Ed. 2d 196 (1996), overruled in part on other
grounds by State v. Alexander, 254 Conn. 290, 299–300,
755 A.2d 868 (2000).
The state argues that the alleged violation was harm-
less because the ‘‘overwhelming evidence of guilt [dem-
onstrates] there is no reasonable doubt that the jury
would have convicted the defendant of all three
offenses—felony murder, burglary, and criminal pos-
session of a firearm—with or without the prosecution’s
[generic] tailoring argument during rebuttal.’’ We agree
that the strength of the state’s case against the defen-
dant, standing alone, renders the alleged error harmless
beyond a reasonable doubt.15
Having thoroughly reviewed the record, we do not
believe that the prosecutor’s alleged ‘‘generic tailoring’’
argument had any discernible effect on the outcome of
the trial. The state presented an overwhelming case
against the defendant.16 The DNA evidence and testi-
mony from both Coutermash and the defendant demon-
strate that the defendant was involved in the victim’s
death. In fact, the defendant concedes on appeal that
‘‘[t]he evidence supports a conclusion that [he] was in
the apartment and held the pistol while struggling with
[the victim] when it fired twice.’’
According to Coutermash, on October 19, 2014, the
two men intended to rob the victim of either drugs or
money by flashing a gun in his face. The defendant also
testified that he ‘‘was looking to get a few bucks’’ when
he traveled with Coutermash to the victim’s apartment.
See footnote 3 of this opinion. The defendant’s testi-
mony regarding what occurred on October 19, 2014,
differed from Coutermash’s account, as the defendant
said that both he and Coutermash entered the victim’s
apartment. Nevertheless, the defendant testified that
he told the victim to ‘‘just give [Coutermash] his money
. . . just give him what you owe him . . . .’’ after the
defendant had entered the victim’s apartment with a
gun in his hand. Under either version of events—the
defendant’s or Coutermash’s—the jury reasonably
could have concluded that the defendant entered the
victim’s apartment with the intent to commit a forceful
taking; see General Statutes § 53a-133; and that the vic-
tim was shot during the ensuing struggle.
Additionally, Vivian and Ashante both testified that
a lone intruder demanded money and pills from the
victim before struggling with and shooting him.
According to Vivian, the intruder wore a grey ‘‘sweat
jacket’’ and a yellow or beige hat. DNA evidence found
on the grey sweatshirt and tan hat found next to the
victim’s body directly connected the defendant to the
shooting, and he even testified at trial that the gun
discharged while he struggled with the victim. Vivian
also testified that the lone intruder entered through the
locked back door after he forcefully banged on it, and
that she heard him say something that ‘‘sounded like
give it up,’’ and attacked him with a broom handle and
called 911. All of this is compelling evidence that the
defendant was armed with a gun when he unlawfully
entered the victim’s apartment with the intent to rob
the victim and that the victim died as a result of the
incident. The state therefore presented a very strong
case against the defendant. See footnote 16 of this opin-
ion. Moreover, Vivian and Ashante corroborated Cou-
termash’s testimony that the defendant entered the
victim’s apartment alone with the intent to take either
drugs or money from the victim at gunpoint. Cf. State
v. Cassidy, supra, 236 Conn. 131 (state failed to prove
that improper remarks were harmless because, inter
alia, ‘‘the state’s case rested entirely upon the uncorrob-
orated testimony of the victim’’); State v. Carter, 47
Conn. App. 632, 648, 708 A.2d 213 (even assuming that
prosecutor’s remarks were improper under Cassidy,
they were harmless beyond reasonable doubt because
‘‘the state’s case did not rest entirely on the uncorrobo-
rated testimony of a single victim’’), cert. denied, 244
Conn. 909, 713 A.2d 828 (1998).
Even if we assume solely for the sake of argument
that the prosecutor’s remarks during rebuttal violated
the defendant’s rights under article first, § 8, of the
Connecticut constitution, we do not believe that they
influenced the outcome of the trial. The state has proved
that the error, if any, was harmless beyond a reasonable
doubt. Accordingly, the defendant’s claim fails under
the fourth prong of Golding.17
II
The defendant’s second claim is that the state violated
his rights to due process and a fair trial when the prose-
cutor committed three separate improprieties during
her closing remarks to the jury.18 He argues that the
prosecutor asserted facts not in evidence, misstated the
evidence that was actually introduced, and improperly
undermined his credibility. He contends that his credi-
bility was ‘‘the central issue in this case,’’ and that such
improprieties were harmful because they undermined
his credibility and suggested that he possessed a guilty
conscience. The state, on the other hand, argues that
the arguments by the prosecutor were not improper
and, even if they were improper, they did not deprive
the defendant of his rights to due process and a fair
trial. We conclude that, even if we were to assume,
without deciding, that the challenged comments were
improper, the defendant failed to prove that they
deprived him of his rights to due process and a fair trial.
The following additional procedural history is rele-
vant to this claim. During the state’s rebuttal argument,
the prosecutor made three sets of comments that the
defendant claims amounted to prosecutorial impropri-
ety. The first set of comments relates to the prosecutor’s
characterization of the testimony from Douglas Fox, a
firearms expert who testified on behalf of the state, and
how the defendant must have chambered two rounds
in the gun in his possession before intentionally pulling
the trigger. During her rebuttal, the prosecutor argued
in relevant part: ‘‘[Fox] . . . explained to you how [the
handgun used to shoot the victim] works, which is
extremely important. You will determine that his testi-
mony is important because he told you that firing that
weapon takes a purposeful, physical action to make
that weapon able to be fired. If you recall, he showed
you that weapon, he showed you that you have to pull
that slide back. That doesn’t happen by accident. Those
are not accidental movements, and it’s certainly not
accidental twice.’’ (Emphasis added.) She also argued:
‘‘[While the victim] is attacking [the defendant] . . .
and struggling, struggling, struggling, and by accident
the gun goes off—twice. [The defendant claims he]
[d]idn’t pull the trigger intentionally, certainly didn’t
pull the slide back intentionally, all accidental. Ask
yourselves, ladies and gentlemen, does this story make
any sense whatsoever?’’
The second set of comments relates to the prosecu-
tor’s characterization of the defendant’s conduct imme-
diately after the victim was shot. During her rebuttal,
the prosecutor argued in relevant part: ‘‘[The defendant
claimed] he was so concerned about all of the injuries,
on how bad [the victim] was hurt, and the blood and
he felt horrible. What did he do as soon as he left? Did
he call 911—this is an accident, according to him. Did
he call 911 and get him help? Do you recall what he
said? He called his lawyer.’’ (Emphasis added.)
The third and final set of comments are those pre-
viously set forth in part I of this opinion concerning
the defendant’s presence at trial and his corresponding
opportunity to generally tailor his testimony.
We now set forth the relevant legal principles govern-
ing our review. It is often said that ‘‘ ‘[w]hile [the prose-
cutor] may strike hard blows, [s]he is not at liberty to
strike foul ones. It is as much [her] duty to refrain from
improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring
about a just one.’ ’’ State v. Rowe, 279 Conn. 139, 159,
900 A.2d 1276 (2006), quoting Berger v. United States,
295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).
Although the defendant did not object to the remarks
he challenges on appeal, we still review his claims
because ‘‘a defendant who fails to preserve claims of
prosecutorial [impropriety] need not seek to prevail
under the specific requirements of [Golding], and, simi-
larly, it is unnecessary for a reviewing court to apply
the four-pronged Golding test. . . .
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry. . . .
‘‘[O]ur determination of whether any improper con-
duct by the [prosecutor] violated the defendant’s fair
trial rights is predicated on the factors set forth in State
v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)],
with due consideration of whether that [impropriety]
was objected to at trial. . . . These factors include: [1]
the extent to which the [impropriety] was invited by
defense conduct or argument . . . [2] the severity of
the [impropriety] . . . [3] the frequency of the [impro-
priety] . . . [4] the centrality of the [impropriety] to
the critical issues in the case . . . [5] the strength of the
curative measures adopted . . . [6] and the strength of
the state’s case.’’ (Citations omitted; internal quotation
marks omitted.) State v. Payne, supra, 303 Conn. 560–
61. ‘‘The question of whether the defendant has been
prejudiced by prosecutorial [impropriety] . . .
depends on whether there is a reasonable likelihood
that the jury’s verdict would have been different absent
the sum total of the improprieties.’’ (Internal quotation
marks omitted.) State v. Ross, 151 Conn. App. 687, 700,
95 A.3d 1208, cert. denied, 314 Conn. 926, 101 A.3d 271,
272 (2014). ‘‘Under the Williams general due process
standard, the defendant has the burden to show both
that the prosecutor’s conduct was improper and that
it caused prejudice to his defense.’’ State v. A. M., supra,
324 Conn. 199.
‘‘The two steps of [our] analysis are separate and
distinct, and we may reject the claim if we conclude
that the defendant has failed to establish either prong.’’
State v. Danovan T., 176 Conn. App. 637, 644, 170 A.3d
722 (2017), cert. denied, 327 Conn. 992, 175 A.3d 1247
(2018); see also State v. Aviles, 154 Conn. App. 470,
486, 106 A.3d 309 (‘‘[b]ecause we assume, without decid-
ing, that the challenged comments were improper, we
move directly to the second step of the analysis and
address whether the prosecutor’s remarks were harm-
ful’’), cert. denied, 316 Conn. 903, 111 A.3d 471 (2015).
The defendant claims that each of the three separate
sets of comments by the prosecutor deprived him of
his rights to due process and a fair trial. With respect
to the first set of remarks, the defendant argues that
the prosecutor improperly suggested that the firearm
in his possession could not have fired accidentally twice
during his struggle with the victim. According to the
defendant, the prosecutor improperly ‘‘implie[d] that
the defendant had to pull the slide [of the gun] back
before each shot, and had to pull the trigger intention-
ally twice.’’ As to the second set of remarks, the defen-
dant contends that the state improperly argued that,
instead of calling 911 immediately after the shooting,
he chose to call his lawyer. His argument for this set
of remarks is twofold. First, he maintains that the state
‘‘implie[d] that [he] had the means to call 911 at or
shortly after leaving [the victim’s] house, a fact not in
evidence,’’ and second, that ‘‘[i]t also implie[d] that [he]
called his lawyer as soon as he left.’’ According to him,
the state’s remarks ‘‘both misstated the evidence and
implied that only guilty people call their lawyers.’’
Finally, as an alternative to his claim presented in part I
of this opinion, the defendant reframes the prosecutor’s
‘‘generic tailoring’’ remarks as a general prosecutorial
impropriety claim. Even if we assume, without deciding,
that these remarks were improper, on the basis of our
evaluation of the Williams factors, we conclude that
the defendant has failed to prove that he was deprived
of his rights to due process and a fair trial.19
A
First and Second Sets of Remarks
With respect to the first and second set of remarks,
we initially note that trial counsel for the defendant did
not invite either set of remarks by the prosecutor. The
first Williams factor therefore favors the defendant. At
the same time, however, the remarks were not severe
enough to influence the jury improperly. Defense coun-
sel did not object to either set of remarks at trial, and
‘‘it [is] highly significant that defense counsel failed to
object to any of the improper remarks, request curative
instructions, or move for a mistrial.’’ State v. Thompson,
266 Conn. 440, 479, 832 A.2d 626 (2003); see also State
v. Payne, supra, 303 Conn. 568 (‘‘[w]hen no objection
is raised at trial, we infer that defense counsel did not
regard the remarks as ‘seriously prejudicial’ at the time
the statements were made’’). The second Williams fac-
tor favors the state.
The allegedly improper remarks were also isolated.
The prosecutor’s remarks regarding the firearm
occurred twice during a lengthy rebuttal argument. See,
e.g., State v. Ross, supra, 151 Conn. App. 701 (frequency
factor under Williams favored state where ‘‘the claimed
improprieties were not pervasive throughout the trial,
but were confined to, and constituted only a small por-
tion of, closing and rebuttal argument’’). As for the
remarks on the defendant’s call to his lawyer, the prose-
cutor, during cross-examination, asked a single, follow
up question regarding the defendant’s statement that
he called his lawyer after he shot the victim;20 at the
end of her closing, the prosecutor made a passing refer-
ence to that call. Cf. State v. Angel T., 292 Conn. 262,
290–91, 973 A.2d 1207 (2009) (state improperly
addressed defendant’s decision to seek aid of counsel
prior to arrest by eliciting evidence through two wit-
nesses and ‘‘then discussed the evidence at length dur-
ing both its opening and rebuttal summations’’). Nor
do we view any of these remarks as egregious under
the circumstances. See State v. Thompson, supra, 266
Conn. 480 (‘‘[g]iven the defendant’s failure to object,
only instances of grossly egregious [impropriety] will
be severe enough to mandate reversal’’). The third Wil-
liams factor weighs in favor of the state.
It is also significant that neither set of alleged impro-
prieties went to critical issues in the case. Because the
defendant was charged with felony murder, his intent
to shoot or murder the victim was not at issue. See,
e.g., State v. Johnson, 165 Conn. App. 255, 269–70, 138
A.3d 1108 (no requirement under felony murder statute
that defendant intend to murder victim; state need only
prove death in course of and furtherance of felony),
cert. denied, 322 Conn. 904, 138 A.3d 933 (2016). The
prosecutor’s remarks about whether chambering a
round in the defendant’s handgun or firing it was ‘‘acci-
dental’’ therefore did not go to a critical issue in the
case. Nor did the state’s case require that it prove that
the defendant possessed a guilty conscience. See State
v. Montoya, 110 Conn. App. 97, 109, 954 A.2d 193 (prose-
cutor’s statements were not central to critical issue in
case where subject of statements ‘‘was not an element
of [the charged offense]’’), cert. denied, 289 Conn. 941,
959 A.2d 1008 (2008). Moreover, contrary to the defen-
dant’s claim on appeal, the state’s case against the
defendant did not hinge on a credibility contest between
him and Coutermash. Cf. State v. Angel T., supra, 292
Conn. 290 (state’s case ‘‘turned largely’’ on credibility
contest between defendant and victim ‘‘and the impro-
priety gave the clear impression that the defendant,
who was not speaking to the police and had retained
an attorney in connection with the investigation, had
something to hide’’). The fourth Williams factor favors
the state.
With respect to the fifth Williams factor, the defen-
dant’s failure to object at trial deprived the court of the
opportunity to adopt tailored curative measures. See,
e.g., State v. Ross, supra, 151 Conn. App. 702 (‘‘by failing
to bring [the claimed improprieties] to the attention
of the trial court, [the defendant] bears much of the
responsibility for the fact that these claimed improprie-
ties went uncured’’ [internal quotation marks omitted]).
The court, nonetheless, did instruct the jury that argu-
ments of counsel were not evidence. See State v. Mon-
toya, supra, 110 Conn. App. 110 (‘‘[w]hen [any]
impropriety is brief and isolated . . . the court’s gen-
eral instructions to the jury to decide the case on the
facts before it and not on the arguments of counsel
serve to minimize harm from impropriety’’). The fifth
Williams factor therefore weighs in favor of the state.
Finally, the sixth Williams factor weighs heavily in
favor of the state. The evidence of guilt was overwhelm-
ing. This factor, standing alone, is sufficient to demon-
strate that the remarks of the prosecutor, even if we
assume for the sake of analysis that they were improper,
were not so serious as to deprive the defendant of his
rights to due process and a fair trial. See, e.g., State v.
Aviles, supra, 154 Conn. App. 487–88 (strength of state’s
case against defendant can outweigh other Williams
factors favoring defendant). Accordingly, we conclude
that in the context of the entire trial, the defendant
has failed to prove that the first and second sets of
challenged remarks deprived him of his rights to due
process and a fair trial.
B
‘‘Generic Tailoring’’ Remarks
As an alternative to his claim presented in part I of
this opinion, the defendant reframes his challenge to
the prosecutor’s ‘‘generic tailoring’’ remarks as a claim
that these remarks deprived him of his general due
process right to a fair trial. See, e.g., State v. A. M.,
supra, 324 Conn. 198–99; State v. Payne, supra, 303
Conn. 562–63. We initially note that defense counsel
did not object to the prosecutor’s purported ‘‘generic
tailoring’’ remarks. See, e.g., State v. Payne, supra, 568;
cf. State v. Cassidy, supra, 236 Conn. 122, 132 (defen-
dant moved for mistrial and requested curative instruc-
tions in response to prosecutor’s generic tailoring
argument).
Additionally, in part I of this opinion, we discussed
the strength of the state’s case against the defendant.
See State v. Payne, supra, 303 Conn. 561 (sixth Williams
factor is ‘‘the strength of the state’s case’’ [internal quo-
tation marks omitted]). This factor, standing alone,
demonstrates that the remarks of the prosecutor, even
if we assume for the sake of analysis that they were
improper, were not so serious as to deprive the defen-
dant of his rights to due process and a fair trial. See,
e.g., State v. Aviles, supra, 154 Conn. App. 487–88.
The other Williams factors also weigh in favor of the
state. As to the first Williams factor, defense counsel
stated during closing argument in relevant part: ‘‘I have
to do my best to anticipate [the state’s] arguments. . . .
[The state] may argue that [the defendant] is trying
to save himself by concocting this story. My response
to that is, refer back to the undisputed evidence. Which
version is a concoction, and which one is closer to
reality, based on the evidence?’’ (Emphasis added.)
Defense counsel’s remarks, even if to a slight degree,
invited the prosecutor to respond by arguing how the
defendant might be ‘‘trying to save himself by concoct-
ing [his] story’’ to the jury. See, e.g., State v. Payne,
supra, 303 Conn. 567 (defense counsel’s comments on
defendant’s credibility invited state’s attack on defense
counsel’s ethics).
The prosecutor’s comments on the defendant’s pres-
ence at trial—i.e., ‘‘to sit there and listen to and come
up with his version [of events]’’—were limited to two
brief instances during her rebuttal21 and were not
severe. Cf. State v. A. M., supra, 324 Conn. 206 (remarks
by prosecutor were ‘‘particularly severe’’ because pros-
ecutor violated General Statutes § 54-84 [a] by explicitly
commenting on defendant’s failure to testify). Addition-
ally, the trial court instructed the jury that arguments
of counsel were not evidence. See State v. Payne, supra,
303 Conn. 567 (‘‘the trial court cured any harm by
instructing the jury that the arguments of counsel were
not evidence on which the jurors could rely’’); see also
State v. Collins, 299 Conn. 567, 590, 10 A.3d 1005 (‘‘[w]e
presume the jury . . . followed [the court’s instruc-
tion] in the absence of any indication to the contrary’’),
cert. denied, 565 U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d
193 (2011). Thus, the second, third, and fifth Williams
factors weigh in favor of the state.
Finally, although the defendant’s credibility was
important to the jury’s resolution of the case, the state’s
case did not hinge on a credibility contest between
Coutermash and the defendant.22 Cf. State v. A. M.,
supra, 324 Conn. 211–13 (state’s case against defendant,
accusing him of committing various sexual assault and
risk of injury to child offenses, rested entirely on vic-
tim’s credibility; prosecutor’s improper remarks bol-
stered victim’s credibility and diminished defendant’s
credibility). Coutermash testified that both men went
to the victim’s home with the intent to rob him. See,
e.g., State v. Pranckus, 75 Conn. App. 80, 87–88, 815
A.2d 678 (‘‘[i]t is the [jury’s] exclusive province to weigh
the conflicting evidence and to determine the credibility
of witnesses’’ [internal quotation marks omitted]), cert.
denied, 263 Conn. 905, 819 A.2d 840 (2003). At the same
time, the defendant testified that he went to the victim’s
apartment ‘‘looking to get a few bucks’’ and, after enter-
ing the apartment with a gun in his hand, told the victim
to ‘‘just give [Coutermash] his money . . . .’’ According
to Vivian and Ashante, a lone intruder entered their
apartment and demanded that the victim hand over
money and pills. Scientific testing revealed that the
defendant’s DNA was on both the grey sweatshirt and
the tan hat recovered next to the victim’s body. On the
basis of the defendant’s own testimony, the testimony
from Vivian and Ashante, and the scientific evidence,
the jury reasonably could have inferred—without
regard to Coutermash’s testimony—that the defendant
unlawfully entered or remained in the victim’s apart-
ment with the intent to rob him. See, e.g., State v.
Thompson, supra, 266 Conn. 483 (fourth and fifth Wil-
liams factors weighed in favor of state because ‘‘[that
case was] not a case that rested solely on the credibility
of witnesses’’); State v. Carter, supra, 47 Conn. App.
648 (even if prosecutor’s remarks were improper under
Cassidy, they were harmless beyond reasonable doubt
because, inter alia, defendant’s credibility ‘‘was not criti-
cal due to the existence of independent evidence of the
crime’’). Accordingly, we conclude that in the context
of the entire trial, the defendant has failed to prove that
the challenged ‘‘generic tailoring’’ remarks deprived him
of his rights to due process and a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Article first, § 8, of the constitution of Connecticut, as amended by
articles seventeen and twenty-nine of the amendments, provides in relevant
part: ‘‘In all criminal prosecutions, the accused shall have a right to be heard
by himself and by counsel . . . [and] to be confronted by the witnesses
against him . . . . No person shall be compelled to give evidence against
himself, nor be deprived of . . . liberty . . . without due process of law
. . . .’’
2
The state charged Coutermash with various crimes in connection with
the victim’s death. Prior to the defendant’s trial, Coutermash pleaded guilty
to accessory to manslaughter in the first degree and accessory to burglary
in the first degree. He testified on behalf of the state pursuant to a coopera-
tion agreement.
3
During direct examination, the defendant testified that, on October 19,
2014, Coutermash told him to ‘‘[t]ake a ride with me; I gotta go collect some
money’’ but that Coutermash did not say from whom he was going to be
collecting money. On cross-examination, the defendant also testified that
‘‘[Coutermash] told me [that] he had to collect some money and if he got
it he would throw me a few bucks,’’ and agreed that he ‘‘was looking to get
a few bucks’’ when he went to the victim’s apartment. Coutermash denied
going to the victim’s apartment ‘‘to collect a $400 debt’’ and testified that
the victim did not owe him money.
4
James Samperi, Jr., a witness for the state who was familiar with the
defendant, also testified that the defendant occasionally carried a knife.
5
During direct examination, the defendant admitted to struggling with
the victim over the gun in his possession and that the gun ‘‘went off’’ twice
during the struggle.
6
‘‘DNA stands for deoxyribonucleic acid and comprises a person’s inher-
ited genetic material.’’ State v. Aviles, 154 Conn. App. 470, 483 n.4, 106 A.3d
309 (2014), cert. denied, 316 Conn. 903, 111 A.3d 471 (2015).
7
Investigators cross-referenced the DNA retrieved from the grey
sweatshirt with DNA contained in the CODIS database, a national repository
of DNA for convicted felons. See, e.g., State v. Webb, 128 Conn. App. 846,
852–83 n.3, 19 A.3d 678 (generally describing national CODIS database),
cert. denied, 303 Conn. 907, 32 A.3d 961 (2011).
8
Lana Ramos, an employee of the state forensics laboratory, testified that
testing the evidence from the tan hat revealed a mixture of DNA in which
the victim and the defendant ‘‘are included as contributors to the DNA
profile [from the second swab of the tan hat].’’ According to Ramos, ‘‘[t]he
expected frequency of individuals who could be a contributor to the DNA
profile from [the second swab of the tan hat] is approximately 1 in 4.6
million in the African-American population; approximately 1 in 2.6 million
in the Caucasian population; and approximately 1 in 3.8 million in the
Hispanic population.’’
9
At trial, both Samperi and Jason Marini, who also was familiar with the
defendant and testified on behalf of the state, identified the defendant as
the individual observed in the surveillance footage.
10
During closing argument, trial counsel for the defendant conceded that
the defendant was guilty of criminal possession of a firearm.
11
‘‘Generic tailoring arguments occur when the prosecution attacks the
defendant’s credibility by simply drawing the jury’s attention to the defen-
dant’s presence at trial and his resultant opportunity to tailor his testimony.’’
Martinez v. People, 244 P.3d 135, 141 (Colo. 2010).
12
Our Supreme Court previously held that such arguments violated a
defendant’s sixth amendment rights under the federal constitution. See State
v. Cassidy, 236 Conn. 112, 127–28, 672 A.2d 899, cert. denied, 519 U.S. 910,
117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), overruled in part by State v. Alexander,
254 Conn. 290, 299–300, 755 A.2d 868 (2000). Following the decision by the
United States Supreme Court in Portuondo v. Agard, 529 U.S. 61, 67–69,
120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000), however, our Supreme Court reversed
its holding in Cassidy. See State v. Alexander, 254 Conn. 290, 296, 755 A.2d
868 (2000).
13
The defendant argues, in accordance with State v. Geisler, 222 Conn.
672, 610 A.2d 1225 (1992), that the Connecticut constitution provides greater
protection than the federal constitution with respect to ‘‘generic tailoring’’
arguments. See id., 684–86 (setting forth six factors courts consider when
determining whether state constitution provides greater protection than
federal constitution).
14
Both parties address this claim under the framework of Golding, so we
follow their lead. We note, however, that a defendant generally does not
need to satisfy the four-pronged Golding test to prevail on a prosecutorial
impropriety claim. See State v. A. M., 324 Conn. 190, 198 n.2, 152 A.3d 49
(2016); State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012). Where a
defendant claims that prosecutorial impropriety infringed a specifically enu-
merated constitutional right, ‘‘the defendant initially has the burden to estab-
lish that a constitutional right was violated. . . . If the defendant establishes
the violation, however, the burden shifts to the state to prove that the
violation was harmless beyond a reasonable doubt.’’ (Citation omitted.)
State v. A. M., supra, 199. The test is the functional equivalent of applying
Golding’s third and fourth prongs. We do not decide whether the defendant
has demonstrated that a constitutional violation exists on this record. We
assume, simply for the sake of argument, that the defendant met his burden
and conclude that the state has demonstrated that the alleged violation was
harmless beyond a reasonable doubt. Furthermore, because we assume,
without deciding, that the state’s alleged ‘‘generic tailoring’’ argument vio-
lated the defendant’s rights under the state constitution, we do not address
the Geisler factors.
Additionally, we note that, on June 21, 2018, State v. Weatherspoon, AC
40651, was transferred to our Supreme Court. The defendant in Weath-
erspoon also raises the issue of whether article first, § 8, of the Connecticut
constitution prohibits ‘‘generic tailoring’’ arguments. See State v. Weath-
erspoon, SC 20134.
15
We limit our analysis to the state’s argument that the overwhelming
evidence of guilt renders the constitutional violation, if any, harmless beyond
a reasonable doubt. In similar circumstances, after concluding that the
prosecutor, during rebuttal, violated a defendant’s rights under the fifth
amendment to the federal constitution, our Supreme Court applied the
factors set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987), to determine whether the state proved that such violation was harm-
less beyond a reasonable doubt. See State v. A. M., supra, 324 Conn. 205.
Nonetheless, the court noted that ‘‘[it was] not required to do a complete
Williams analysis due to the nature of the right infringed’’; (emphasis
added) id.; and that ‘‘the Williams standard applies only when a defendant
claims that a prosecutor’s conduct did not infringe on a specific constitu-
tional right, but nevertheless deprived the defendant of his general due
process right to a fair trial.’’ Id., 199, citing State v. Payne, 303 Conn. 538,
562–63, 34 A.3d 370 (2012).
16
With respect to the felony murder charge, ‘‘[f]elony murder occurs when,
in the course of and in furtherance of another crime, one of the participants
in that crime causes the death of a person who is not a participant in the
crime. . . . The two phrases, in the course of and in furtherance of, limit
the applicability of the statute with respect to time and causation. . . . The
phrase in the course of focuses on the temporal relationship between the
murder and the underlying felony. . . . We previously have defined the
phrase in the course of for purposes of § 53a-54c to include the period
immediately before or after the actual commission of the crime . . . .’’
(Citation omitted; internal quotation marks omitted.) State v. Johnson, 165
Conn. App. 255, 290–91, 138 A.3d 1108, cert. denied, 322 Conn. 904, 138
A.3d 933 (2016); see also General Statutes § 53a-54c. The state accused the
defendant of committing burglary as the underlying felony for this charge,
and alleged that ‘‘in the course of and in furtherance of such crime, he or
another participant caused the death of [the victim] . . . .’’
With respect to the burglary in the first degree charge, ‘‘[a] person is
guilty of burglary in the first degree when . . . such person enters or
remains unlawfully in a building with intent to commit a crime therein and
is armed with . . . a deadly weapon . . . .’’ General Statutes § 53a-101
(a) (1).
Finally, § 53a-217 provides in relevant part: ‘‘(a) A person is guilty of
criminal possession of a firearm . . . when such person possesses a firearm
. . . and (1) has been convicted of a felony committed prior to, on or after
October 1, 2013, or of a violation of section 21a-279, 53a-58, 53a-61, 53a-
61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d committed
on or after October 1, 2013 . . . .’’ As previously stated, counsel for the
defendant conceded during closing argument that the defendant was guilty
of criminal possession of a firearm. See footnote 10 of this opinion.
17
The defendant alternatively argues that we should ‘‘prohibit generic
tailoring’’ arguments under our supervisory authority ‘‘and . . . apply that
ruling to [the present] case.’’ ‘‘[A]n appellate court may invoke its supervisory
authority [over the administration of justice] to reverse a criminal conviction
when the prosecutor deliberately engages in conduct that he or she knows,
or ought to know, is improper. . . . Such a sanction generally is appropriate,
however, only when the [prosecutor’s] conduct 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.’’ (Internal quotation marks omitted.)
State v. Thompson, 266 Conn. 440, 485, 832 A.2d 626 (2003). We conclude
that this is not an appropriate case for our supervisory authority because
we do not believe that the prosecutor’s arguments in the present case, even
if assumed for the sake of argument to have been improper, were so offensive
to the sound administration of justice that only a new trial can effectively
prevent such assaults on the integrity of the tribunal. Cf. State v. Payne,
260 Conn. 446, 463, 797 A.2d 1088 (2002); id., 466 (reversing conviction under
supervisory authority where prosecutor committed numerous improprieties,
which were part of pattern of misconduct throughout closing argument, in
disregard of trial court rulings; ‘‘[m]erely to reprimand a prosecutor [under
such circumstances] would not sufficiently convey our strong disapproval
of such tactics’’).
We also conclude that the defendant cannot prevail on his claim of plain
error. The defendant concedes that his fully briefed state constitutional
claim ‘‘is an issue of first impression’’ and that the prosecutor’s ‘‘generic
tailoring’’ argument is permissible under the federal constitution. See State
v. Alexander, supra, 254 Conn. 299–300. The alleged error therefore is not
‘‘plain in the sense that it is patent [or] readily [discernible] on the face of
a factually adequate record, [and] also . . . obvious in the sense of not
debatable.’’ (Internal quotation marks omitted.) State v. Jamison, 320 Conn.
589, 596, 134 A.3d 560 (2016); see also State v. Fagan, 280 Conn. 69, 88,
905 A.2d 1101 (2006) (defendant’s plain error claim addressing sentence
enhancement under General Statutes § 53a-40b presented issue of first
impression and, therefore, Supreme Court ‘‘[could not] conclude that the
trial court committed a clear and obvious error by exercising its discretion
under the express provisions of a presumptively valid statute’’), cert. denied,
549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). Nor is the alleged
error ‘‘so harmful or prejudicial that it resulted in manifest injustice.’’ State
v. Jamison, supra, 599. This is especially so where the state presented
overwhelming evidence of guilt, and its case did not hinge on a credibility
contest between the defendant and Coutermash. See State v. Sanchez, 308
Conn. 64, 84, 60 A.3d 271 (2013) (‘‘[t]o find plain error without regard to
the evidence in the case would be inconsistent with the requirement of
showing manifest injustice’’).
18
The defendant generally asserts that ‘‘[i]f this court concludes that the
state committed improprieties in its closing argument, it then considers
whether the defendant was deprived of his federal and state rights to due
process and [a fair trial].’’ (Emphasis added.) The defendant does not inde-
pendently analyze this claim under the state constitution. We therefore deem
any state constitutional claim abandoned. See, e.g., State v. Bennett, 324
Conn. 744, 748 n.1, 155 A.3d 188 (2017).
19
Our opinion should not be understood to suggest in any way that the
prosecutor committed impropriety at any time during her rebuttal. We recog-
nize that ‘‘[c]ounsel must be allowed a generous latitude in argument, as
the limits of legitimate argument and fair comment cannot be determined
precisely by rule and line, and something must be allowed for the zeal of
counsel in the heat of argument.’’ (Internal quotation marks omitted.) State
v. Thompson, 266 Conn. 440, 458, 832 A.2d 626 (2003). We simply assume,
solely for the sake of argument, that the prosecutor’s remarks were improper.
20
In relevant part, the prosecutor cross-examined the defendant as follows:
‘‘Q. All right. Did you call 911 when you left [the victim’s apartment], sir?
‘‘A. No, I called my lawyer.
‘‘Q. You called your lawyer?
‘‘A. Not right afterward, but after I found out about the warrant.
‘‘Q. When—
‘‘A. Not Glenn Conway.
‘‘Q. My question is, when you were so upset about [the victim] being shot,
did you call 911?
‘‘A. No.’’
The prosecutor did not revisit the defendant’s call to his lawyer during
cross-examination.
21
In addition to the remarks referenced in part I of this opinion, the
prosecutor, when comparing the testimony of Coutermash and the defen-
dant, also argued in relevant part: ‘‘[The defendant] had the opportunity to
look at all of this evidence here. . . . Coutermash didn’t have that oppor-
tunity.’’
22
The defendant argues on appeal that ‘‘[t]his case was largely a credibility
contest between Coutermash and [him].’’ According to the defendant, ‘‘[he]
entered [the victim’s] house to stop the fight [between Coutermash and the
victim], without an intent to commit a felony, and was [therefore] not guilty
of burglary or felony murder.’’ (Emphasis added.) In other words, he focuses
his argument on what the state needed to prove with respect to the burglary
charge by contending that he did not enter or remain in the victim’s apart-
ment with an intent to commit a crime. See General Statutes § 53a-101
(a) (1).