State v. Harris ( 2020 )

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STATE OF CONNECTICUT v. JERMAINE HARRIS
(AC 42888)
Lavine, Alvord and Harper, Js.
Syllabus
Convicted, following a jury trial, of the crimes of murder, robbery in the
first degree, and carrying a pistol without a permit, the defendant
appealed. Held:
1. The defendant could not prevail on his claim that the trial court improperly
admitted uncharged misconduct evidence regarding two robberies and
three shootings: the defendant failed to preserve his claim that the
trial court improperly admitted evidence of uncharged misconduct, the
defendant’s objections lacked specificity with regard to the two robber-
ies and the record did not reveal any objections to the admission of
evidence regarding the shootings; moreover, the defendant was not
entitled to reversal of his conviction under the plain error doctrine on
his unpreserved claim that the trial court improperly admitted evidence
of three uncharged shootings as it was clear from the record that the
court balanced the probative value of the evidence against its prejudicial
effect, and its determination that the evidence was more probative than
prejudicial was legally correct; furthermore, even assuming, arguendo,
that the trial court abused its discretion in admitting the evidence of
the uncharged shootings, the defendant could not prove that the abuse
of discretion was harmful in light of the trial court’s ameliorative steps,
which included limiting instructions to the jury regarding its use of
uncharged misconduct evidence.
2. The defendant could not prevail on his claim that prosecutorial impropriety
deprived him of his due process right to a fair trial; the prosecutor’s
comments about the defendant’s gang affiliation and her misstatement
about the location where the defendant confessed to an individual about
the murder did not constitute prosecutorial impropriety and, although,
the prosecutor’s use of the defendant’s nickname beyond the purpose
of clarifying the responses of the witnesses was arguably improper, the
defendant was not deprived of a fair trial by the prosecutor’s use of
his nickname, given the strength of the state’s case, the fact that the
prosecutor’s use of the nickname was infrequent, and the defendant’s
failure to object to its use during trial.
3. The defendant could not prevail on his claim that his right to due process
was violated because the state withheld materially favorable evidence;
evidence of the state’s arrangement to provide a witness with lodging
and a stipend for food was immaterial and there was not a reasonable
probability that the jury would have reached a different verdict had it
considered the undisclosed impeachment evidence because the
impeachment value of the evidence was low and the state’s case did
not rest on the testimony of that witness but, rather, there was ample
evidence to support the defendant’s conviction, including video surveil-
lance that captured the shooting and testimony that the defendant twice
confessed to shooting the victim.
Argued February 10—officially released June 30, 2020
Procedural History
Information charging the defendant with the crimes
of murder, felony murder, robbery in the first degree,
and carrying a pistol without a permit, brought to the
Superior Court in the judicial district of New Haven,
where the defendant was tried to the jury before Blue,
J.; verdict of guilty; thereafter, the court, Blue, J.,
vacated the defendant’s conviction of felony murder
and sentenced the defendant on the remaining counts,
and the defendant appealed. Affirmed.
Vishal K. Garg, for the appellant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Patrick J. Griffin,
state’s attorney, Stacey M. Miranda, senior assistant
state’s attorney, and Karen A. Roberg, assistant state’s
attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Jermaine Harris, appeals
from the judgment of conviction, rendered after a jury
trial, of murder, robbery in the first degree, and carrying
a pistol without a permit.1 On appeal, the defendant
claims that (1) the trial court improperly admitted
uncharged misconduct evidence, (2) his right to due
process was violated when the prosecutor appealed to
the emotions of the jurors and misstated evidence, and
(3) his right to due process was violated when the
state withheld material evidence. We disagree with the
defendant and, accordingly, affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. In 2011, the defendant was a member of the G-
Shine chapter of the Bloods gang in New Haven. On
the night of July 30, 2011, the defendant met Tevin
Williams, a fellow gang member and, together, they met
the victim, Darryl McIver, who was a member of a rival
gang, the Grape Street Crips. Together, the defendant,
Williams, and McIver travelled throughout ‘‘the Hill’’
section of New Haven and committed three armed rob-
beries.
During the first two robberies, the defendant and
McIver brandished their guns while Williams searched
the victims’ pockets and took whatever valuables were
on their respective persons, including money and cell
phones. The defendant was armed with a Hi-Point nine
millimeter pistol. During the third robbery, McIver pis-
tol whipped Telaso Telez after learning that he did not
have any money. Following the third robbery, McIver
mentioned that he recently had shot Jason Roman, a
member of the Bloods gang who went by the nickname
‘‘Scar.’’ Shortly after that admission, the defendant
pulled Williams aside to inform Williams that he was
going to shoot McIver.
Later that night, the defendant and Williams followed
McIver as he led them through the surrounding neigh-
borhoods. Eventually, all three of them climbed over
a perimeter fence onto commercial property on Ella
Grasso Boulevard. Once on the property, McIver contin-
ued to lead the defendant and Williams, at which point
the defendant drew his gun and shot McIver in the back.
After shooting McIver, the defendant placed his gun on
the ground, next to McIver’s body, and then searched
McIver’s body for his gun. While the defendant was
searching for McIver’s gun, Williams picked up the
defendant’s gun, as the defendant had instructed him
to do, and fled the scene. As Williams left, he heard
two more gun shots.2 After shooting McIver again, the
defendant searched for McIver’s phone and left the
scene.
The defendant and Williams reconnected at the home
of the defendant’s mother, which was located near the
shooting of McIver. It was there that Williams returned
the defendant’s gun to him and that the defendant con-
fessed to Williams that he had killed McIver in retalia-
tion for McIver having shot Scar, their fellow gang
member.
In early August, 2011, the defendant attended a meet-
ing of two chapters of the Bloods at Jocelyn Square
Park in New Haven. During that meeting, the defendant
admitted to Luis Padilla, a fellow Blood, that he had
killed McIver because McIver was ‘‘hard-headed.’’ On
August 15, 2011, the defendant was with Mickey Fergu-
son, a fellow Blood, at Ferguson’s home, when he admit-
ted to killing McIver.
The defendant was arrested on March 21, 2012, and
charged with murder, conspiracy to commit murder,
felony murder, robbery in the first degree, conspiracy
to commit robbery in the first degree, carrying a pistol
without a permit, and criminal possession of a firearm.
See footnote 1 of this opinion. The defendant elected
a trial by jury and was tried on all charges, except
criminal possession of a firearm. The jury was unable to
reach a unanimous verdict with respect to the charges
before it, which resulted in a mistrial. The court, how-
ever, found him guilty of criminal possession of a fire-
arm. The state retried the defendant for murder, felony
murder, robbery in the first degree, and carrying a pistol
without a permit.
Prior to the start of the second jury trial, the state filed
a notice of intent to introduce evidence of uncharged
misconduct. On June 16, 2017, the court conducted a
pretrial hearing pursuant to that notice. During that
hearing, the state informed the court that it intended
to present evidence of three robberies and three shoot-
ings in which the defendant was involved but was not
charged. The state argued that such evidence was rele-
vant to show identity, means, and motive, and that it
would corroborate other crucial prosecution evidence.
At the end of the hearing, the court noted that the
defendant did not object to the evidence pertaining to
the second and third shootings. The court then stated
that it would hear an offer of proof during trial with
regard to evidence pertaining to the first shooting. The
court overruled the defendant’s objection to the evi-
dence of the Telez robbery, concluding that such evi-
dence was probative.
During the defendant’s second jury trial, the prosecu-
tor presented evidence of three separate shootings that
occurred after McIver’s death, that allegedly involved
the defendant, but with which he had not been charged.
More specifically, the prosecutor presented evidence
that the shell casings found at the scene of the other
three shootings matched the shell casings found at the
McIver murder scene. The evidence was admitted at
trial without objections.3
Through the testimony of Williams, the prosecutor
also presented evidence concerning the three robberies
in which the defendant participated with Williams and
McIver but with which he was not charged. Specifically,
Williams testified that he, the defendant, and McIver
committed three robberies, prior to the shooting of
McIver, because they were bored.4 As with the three
shootings, the defendant did not object to the evidence
admitted with regard to the first two robberies with
which he was not charged.
At the conclusion of the evidence, the jury found the
defendant guilty of murder, felony murder, robbery in
the first degree, and carrying a pistol without a permit.
Because the defendant was found guilty of murder,
the court vacated his conviction of felony murder and
imposed a total effective sentence of eighty years of
incarceration.5 This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the court improperly
admitted various uncharged misconduct evidence,
which deprived him of a fair trial. More specifically, he
claims that the court improperly admitted evidence that
he participated in two robberies that preceded McIver’s
death and evidence that he participated in three unre-
lated shootings that all succeeded McIver’s death. We
disagree.
We begin with the relevant legal principles that direct
our analysis. ‘‘The admission of evidence of prior
uncharged misconduct is a decision properly within the
discretion of the trial court . . . . [Every] reasonable
presumption should be given in favor of the trial court’s
ruling . . . . [T]he trial court’s decision will be
reversed only where abuse of discretion is manifest or
where injustice appears to have been done.’’ (Internal
quotation marks omitted.) State v. Daniel W., 180 Conn.
App. 76, 88, 182 A.3d 665, cert. denied, 328 Conn. 929,
182 A.3d 638 (2018).
It is well established, however, ‘‘that [o]ur case law
and rules of practice generally limit this court’s review
to issues that are distinctly raised at trial. . . . Only in
[the] most exceptional circumstances can and will this
court consider a claim, constitutional or otherwise, that
has not been raised and decided in the trial court.’’
(Internal quotation marks omitted.) State v. Thompson,
146 Conn. App. 249, 259, 76 A.3d 273, cert. denied,
310 Conn. 956, 81 A.3d 1182 (2013). ‘‘To review claims
articulated for the first time on appeal and not raised
before the trial court would be nothing more than a
trial by ambuscade of the trial judge.’’ (Internal quota-
tion marks omitted.) State v. Rosado, 134 Conn. App.
505, 516 n.3, 39 A.3d 1156, cert. denied, 305 Conn. 905,
44 A.3d 181 (2012).
duct evidence ‘‘created a serious risk that the jury would
conclude that [he] had a propensity for violence.’’ The
state argues that the defendant waived appellate review
of the admission of evidence concerning the two
uncharged robberies because the defendant’s pretrial
objection to Williams’ testimony was limited to the third
robbery—the Telez robbery—and not all three robber-
ies. In his reply brief, the defendant contends that he
objected to the entirety of Williams’ testimony, which
included all three robberies.6 With respect to the evi-
dence regarding the three shootings with which the
defendant was not charged,7 the state argues that the
claim regarding evidence of the August 1, 2011 shooting
is not properly before this court because the defendant
did not secure a trial court ruling on a challenge to the
admission of such uncharged misconduct evidence and,
thus, he has waived appellate review. In his reply brief,
the defendant seems to argue that if the August 1, 2011
shooting is not properly before this court, it is because
the state failed to make an offer of proof concerning
any evidence that related to the incident. The defendant
further argues that even if we find that his claim is
unpreserved we should, nonetheless, exercise our dis-
cretion to review it because the court’s error requires
reversal under the plain error doctrine.8
As noted, prior to the defendant’s retrial, the court
conducted a hearing on uncharged misconduct pursu-
ant to the state’s request to admit such evidence. During
that hearing, with regard to the robberies, the parties
made certain representations with respect to the testi-
mony to be offered by Williams and Telez. Although it
is evident that the state’s offer of proof and the defen-
dant’s response conflated the anticipated testimony of
the two witnesses with respect to the robberies, to the
extent that the defendant objected to evidence of the
robberies, we conclude that the objection was to Wil-
liams’ testimony about the third robbery and not to
all three robberies. In ruling, the court surmised that
Williams was to testify that he, the defendant, and
McIver ‘‘were robbing somebody on Rosette Street [fif-
teen] minutes before . . . the homicide.’’ Shortly there-
after, defense counsel clarified the defendant’s objec-
tion, stating that ‘‘its probative value does not outweigh
the prejudicial, and that it would be prejudicial as to
my client—with respect to Tevin Williams.’’ At the end
of the hearing, however, the court summarized its rul-
ings: ‘‘As to . . . the July 31 robbery of [Telazo], the
objections are overruled . . . .’’ The defendant never
sought to clarify his objection further, nor did he seek
any clarification from the court. Because the defen-
dant’s objections lacked specificity with regard to the
two robberies that occurred before McIver was shot,
we conclude that his claim that the court abused its
discretion by admitting evidence concerning those rob-
beries was not preserved. See Daley v. McClintock, 267
Conn. 399, 404, 838 A.2d 972 (2004) (‘‘counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling’’ (emphasis added)).
Furthermore, with respect to the admission of evi-
dence of the posthomicide shootings with which the
defendant was not charged, we conclude that the record
is devoid of any objections made by the defendant.
During the uncharged misconduct hearing, the defen-
dant suggested, with regard to the August 1, 2011 shoot-
ing, that the court hear testimony from Padilla as a brief
offer of proof before any objections were to be made.
The court agreed. The state made no offer of proof,
however, and the defendant failed to object further. As
to the August 15, 2011 shooting, the defendant agreed
to the admission of evidence about that incident ‘‘so
long as it’s sanitized’’ pursuant to State v. Collins, 299
Conn. 567, 10 A.3d 1005, cert. denied, 565 U.S. 908, 132
S. Ct. 314, 181 L. Ed. 2d 193 (2011),9 and so long as the
court gave a limiting instruction. With regard to the
September 16, 2011 shooting, defense counsel stated ‘‘I
think that [Collins] . . . is on point on most of [this]
so . . . what I will be asking for is [a] limiting instruc-
tion, and as much as possible, to keep it to the evidence
on the gun.’’ It is clear from the record that the defen-
dant did not object to the admission of evidence per-
taining to the uncharged shootings and, accordingly,
his present challenge to that evidence is unpreserved.
Having determined that the defendant failed to pre-
serve his claim that the court improperly admitted evi-
dence of uncharged misconduct, we turn to his request
for plain error reversal.10 First, we note that plain error
is a rule of reversibility, not review. ‘‘The plain error
doctrine is . . . reserved for truly extraordinary situa-
tions where the existence of the error is so obvious
that it affects the fairness and integrity of and public
confidence in the judicial proceedings. . . . That is, it
is a doctrine that this court invokes in order to rectify
a trial court ruling that, although either not properly
preserved or never raised at all in the trial court, none-
theless requires reversal of the trial court’s judgment,
for reasons of policy. . . . [Thus, an appellant] cannot
prevail under [the plain error doctrine] . . . unless he
[or she] demonstrates that the claimed error is both so
clear and so harmful that a failure to reverse the judg-
ment would result in manifest injustice.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Roger B., 297 Conn. 607, 618, 999 A.2d 752 (2010); see
also Practice Book § 60-5. ‘‘Furthermore, even if the
error is so apparent and review is afforded, the defen-
dant cannot prevail on the basis of an error that lacks
constitutional dimension unless he [or she] demon-
strates that it likely affected the result of the trial.’’
(Internal quotation marks omitted.) State v. Dews, 87
Conn. App. 63, 69, 864 A.2d 59, cert. denied, 274 Conn.
901, 876 A.2d 13 (2005).
The defendant argues that the trial court committed
plain error when it ‘‘felt bound’’ by Collins to admit
evidence concerning all of the uncharged shootings and,
thus, failed to balance the probative value of the
uncharged shootings against the prejudicial effect of
allowing the jury to hear that evidence. We disagree.
During the uncharged misconduct hearing, the court
referenced State v. Collins, supra, 299 Conn. 567, sev-
eral times. In Collins, our Supreme Court conducted
an extensive review of the admissibility of uncharged
misconduct evidence, including a factual scenario simi-
lar to the present case. In Collins, the trial court admit-
ted evidence that the gun used in uncharged shootings
was the same gun used in the underlying crime. Id.,586–93. Our Supreme Court undertook a four-pronged
balancing test to determine whether the trial court in
Collins correctly concluded that evidence of the
uncharged shootings was more probative than prejudi-
cial.11 Although the trial court in the present case did
not explicitly state that it was conducting the four-
pronged balancing test from Collins, the questions it
posed and the instructions it gave to the prosecutor
demonstrate that it was applying the balancing test.
Specifically, the court instructed the prosecutor to
‘‘[trim its] sails’’ in order to limit what information it
elicited from witnesses; the court asked the prosecutor
why it was necessary ‘‘to get into all the gang stuff’’ of
the witnesses and stated that Collins required caution
with such an approach; the court stated that it would
give a limiting instruction to the jury as to the testimony
involving the uncharged misconduct; and the court
instructed the prosecutor to admonish its witnesses
about that to which they should not testify.
Moreover, the court, in agreement with defense coun-
sel, stated that it would allow the prosecutor to ask
leading questions on direct examination, in order to
minimize prejudicial ‘‘blurt-outs.’’ The court also gave
several instructions to the jury about the uncharged
shootings—instructions that were requested and
approved by defense counsel.12 Those instructions
appropriately instructed the jury on the proper use of
the uncharged misconduct evidence. The court also
instructed the jury on the elements of the crimes
charged.
We conclude that the court’s statements, questions,
and instructions to the prosecutor, taken together, per-
suade us that although it did not specifically state that
it was conducting the aforementioned four-pronged bal-
ancing test, the court did balance the probative value of
the evidence against its prejudicial effect in accordance
with Collins. We further conclude that the court’s deter-
mination that the evidence was more probative than
prejudicial was legally correct.
As Connecticut jurisprudence provides,’’[u]ncharged
misconduct evidence has been held not unduly prejudi-
cial when the evidentiary substantiation of the vicious
conduct, with which the defendant was charged, far
outweighed, in severity, the character of his prior mis-
conduct.’’ (Internal quotation marks omitted.) State v.
Collins, supra, 299 Conn. 588. We find it significant that
the three shootings with which the defendant was not
charged in the present case, although dangerous and
horrific, do not rise to the same severity as that of
murder. We further find it significant, as previously
noted, that the court instructed the prosecution to
admonish its witnesses to limit their testimony. The
court’s devised measures for reducing the prejudicial
effect of the evidence ‘‘militates against a finding of
abuse of discretion.’’ (Internal quotation marks omit-
ted.) Id., 589. Furthermore, the court repeatedly gave
a limiting instruction to the jury. See State v. Mooney,
218 Conn. 85, 131, 588 A.2d 145 (trial court’s balancing
was not ‘‘abuse of discretion . . . especially in light of
the limiting instruction given to the jury on this issue’’),
cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d
70 (1991); see also footnote 12 of this opinion. Lastly,
as our Supreme Court found in Collins, we too find
it instructive that other jurisdictions, ‘‘have rejected
challenges, founded on undue prejudice, to the use of
uncharged misconduct evidence in cases wherein the
charged offenses were committed using the same gun
that the defendant had utilized in [other] shootings.’’
State v. Collins, supra, 590.
Additionally, although ‘‘evidence of prior misconduct
is inadmissible to prove that a criminal defendant is
guilty of the crime of which the defendant is accused,’’
there are several exceptions ‘‘set forth in § 4-5 (b) of
the Connecticut Code of Evidence, which provides in
relevant part that [e]vidence of other crimes, wrongs
or acts of a person is admissible . . . to prove intent,
identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system
of criminal activity, or an element of the crime, or to
corroborate crucial prosecution testimony.’’ (Internal
quotation marks omitted.) Id., 582–83.
The state, in its original notice of intent to introduce
evidence of the defendant’s uncharged misconduct,
argued that such evidence was ‘‘relevant to motive,
intent, common scheme, [and] to corroborate crucial
prosecution testimony.’’ Specifically, with regard to the
uncharged shootings, the state argued that the shell
casings found at all the shooting scenes were linked by
ballistics evidence and that such evidence related to
the defendant’s possession of the murder weapon,
which was relevant and, thus, admissible, ‘‘for purposes
of demonstrating both the identity of the shooter and
. . . the means to commit these crimes.’’ The state’s
argument coincides with our jurisprudence. See State
v. Sivri, 46 Conn. App. 578, 584, 700 A.2d 96 (‘‘[e]vidence
indicating that an accused possessed an article with
which the particular crime charged may have been
accomplished is generally relevant to show that the
accused had the means to commit the crime’’ (internal
quotation marks omitted)), cert. denied, 243 Conn. 938,
702 A.2d 644 (1997). The state further argued that the
various shooting incidents were indicative of motive
because of the continuous gang-related tensions and
violence. Again, this court has concluded that such evi-
dence is admissible. See State v. Watts, 71 Conn. App.
27, 37, 800 A.2d 619 (2002) (‘‘gang affiliation was particu-
larly probative in showing . . . motive’’ (internal quo-
tation marks omitted)).
Even assuming, arguendo, that the trial court abused
its discretion in admitting the contested evidence, the
defendant cannot satisfy his burden of proving that the
court’s abuse of discretion was harmful in light of its
ameliorative steps. Accordingly, we conclude that the
defendant is not entitled to a reversal of his conviction
pursuant to the plain error doctrine. See State v. Dews,
supra, 87 Conn. App. 71.
II
Next, the defendant claims that his right to due pro-
cess was violated when the prosecutor committed vari-
ous acts of prosecutorial impropriety.13 More specifi-
cally, the defendant contends that the prosecutor
improperly appealed to the emotions of the jurors by
referring to the defendant by his nickname, ‘‘Maniac’’ or
‘‘Main,’’ and by commenting on and eliciting testimony
about the defendant’s gang involvement. Additionally,
the defendant posits that, during closing argument, the
prosecutor misstated the location where the defendant
admitted to Ferguson that he had killed McIver. In
response, the state argues that the prosecutor’s remarks
did not constitute prosecutorial impropriety, and, even
if they did, the sum total of the improprieties did not
deprive the defendant of a fair trial. We will address
each alleged impropriety in turn.
The following legal principles guide our analysis. ‘‘To
prove prosecutorial [impropriety], the defendant must
demonstrate substantial prejudice. . . . In order to
demonstrate this, the defendant must establish that the
trial as a whole was fundamentally unfair and that the
[impropriety] so infected the trial with unfairness as to
make the conviction a denial of due process. . . . [I]t
is not the prosecutor’s conduct alone that guides our
inquiry, but, rather, the fairness of the trial as a whole.
. . . Moreover, in analyzing claims of prosecutorial
[impropriety], we engage in a two step analytical pro-
cess. The two steps are separate and distinct: (1)
whether [impropriety] occurred in the first instance;
and (2) whether that [impropriety] deprived a defendant
of his due process right to a fair trial. . . . [Addition-
ally], prosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . [T]he reviewing court must give due defer-
ence to the fact that [c]ounsel must be allowed a gener-
ous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Crocker, 83 Conn. App. 615, 656–57, 852 A.2d 762,
cert. denied, 271 Conn. 910, 859 A.2d 571 (2004).
‘‘[F]ollowing a determination that prosecutorial
[impropriety] has occurred . . . an appellate court
must apply the . . . factors [set forth in State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987)] to the
entire trial.’’ (Internal quotation marks omitted.) State
v. Blango, 103 Conn. App. 100, 112, 927 A.2d 964, cert.
denied, 284 Conn. 919, 933 A.2d 721 (2007). ‘‘Among
[those factors] are [1] the extent to which the [impropri-
ety] was invited by defense conduct or argument . . .
[2] the severity of the [impropriety] . . . [3] the fre-
quency of the [impropriety] . . . [4] the centrality of
the [impropriety] to the critical issues in the case . . .
[5] the strength of the curative measures adopted . . .
and [6] the strength of the state’s case.’’ (Internal quota-
tion marks omitted.) State v. Long, 293 Conn. 31, 51,
975 A.2d 660 (2009). ‘‘In weighing the significance of
an instance of prosecutorial impropriety, a reviewing
court must consider the entire context of the trial, and
[t]he question of whether the defendant has been preju-
diced 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 omit-
ted.) Id., 37.
A
The defendant claims that the prosecutor committed
impropriety, during trial and during closing argument,
when the prosecutor referred to the defendant by his
nickname. He further contends that the nickname,
‘‘Maniac’’ or ‘‘Main,’’ was not relevant to any issue in
the case and that the prosecutor used it to paint the
defendant ‘‘as a dangerous, violent lunatic.’’ The state
argues that the use of the defendant’s nickname was
‘‘brief, isolated, and used by the prosecutor merely as
a way of referring to the defendant other than as the
defendant or by his given name.’’
The jury trial from which this appeal arises spanned
six days, including five days of evidence and one day
of closing argument. During the five days of evidence,
there were multiple instances in which the defendant’s
nickname was used in either questions posed by the
prosecutor or answers provided by the witnesses. The
jury first heard the defendant’s nickname when the
prosecutor asked Williams if the defendant had a nick-
name. Thereafter, the prosecutor referred to the defen-
dant by his nickname several times, without it first
being used by a witness in response to a question. Addi-
tionally, during closing and rebuttal argument, the pros-
ecutor used the defendant’s nickname a total of five
times.
After a careful review of the trial transcripts, we
estimate that of all the times in which the defendant’s
nickname was used, approximately one half of those
instances arose when the state’s witnesses had used
the nickname on their own and without any prompting.
Our review further reveals that there were several
instances during trial and closing argument in which
the state had used the defendant’s nickname in order to
clarify whom the witnesses were talking about, because
several witnesses had used the defendant’s nickname
on their own. To the extent that the prosecutor used
the defendant’s nickname during trial beyond the pur-
pose of clarifying the responses of witnesses, in accor-
dance with Connecticut jurisprudence, we conclude
that such use may have been improper. See State v.
Santiago, 269 Conn. 726, 755–56, 850 A.2d 199 (2004)
(prosecutor’s use and incorporation of nickname at
least eighteen times during closing argument beyond
mere reference to defendant was improper); Camacho
v. Commissioner of Correction, 148 Conn. App. 488,
503, 84 A.3d 1246 (‘‘reference to [the defendant’s nick-
name] by the prosecutor at trial was inappropriate’’),
cert. denied, 311 Conn. 937, 88 A.3d 1227 (2014).
Because we conclude that, at times, the prosecutor’s
use of the defendant’s nickname was arguably
improper, we turn to an analysis of the Williams factors.
See State v. Williams, 204 Conn. 523, 540, 529 A.2d 653(1987). From our review of the record, we conclude
that the impropriety was not invited by defense conduct
or argument; the prosecutor used the defendant’s nick-
name, unprompted by the responses of the witnesses,
approximately twelve times over the course of a six
day trial; and no curative measures were adopted. The
prosecutor, however, presented a strong case to the
jury, including, among other things, (1) testimony that
the defendant twice confessed to shooting the victim,
(2) testimony from a witness who saw the defendant
shoot McIver, (3) video surveillance that captured the
shooting,14 and (4) evidence that shell casings found at
the crime scene matched casings found at other shoot-
ings in which the defendant was involved. Given the
strength of the state’s case and the prosecutor’s overall
infrequent use of the defendant’s nickname, we cannot
conclude that the trial as a whole was fundamentally
unfair or that the misconduct so infected the trial with
unfairness as to make the conviction a denial of due
process. See State v. Crocker, supra, 83 Conn. App.
656–58. It is important and significant that the defendant
did not object to the use of his nickname when it
occurred at trial. ‘‘A failure to object demonstrates that
defense counsel presumably [did] not view the alleged
impropriety as prejudicial enough to jeopardize seri-
ously the defendant’s right to a fair trial.’’ (Internal
quotation marks omitted.) State v. Fauci, 282 Conn.
23, 51, 917 A.2d 978 (2007). Furthermore, we cannot
conclude that there is a reasonable likelihood that the
jury’s verdict would have been different absent the sum
total of the alleged improprieties. See State v. Long,
supra, 293 Conn. 37. Accordingly, the use of the defen-
dant’s nickname did not deprive him of a fair trial.
B
The defendant next claims that prosecutorial impro-
priety occurred when the prosecutor commented on the
defendant’s gang involvement for purposes irrelevant
to the issues. More specifically, the defendant argues
that the state improperly portrayed the defendant as a
high ranking gang member who controlled the actions
of those who reported to him, including Williams, and
that the state had continuously referenced gang involve-
ment throughout its closing and rebuttal arguments. He
further argues that it was improper for the prosecutor
to elicit testimony from Padilla about his gang affilia-
tions as well as those of Bell and Sturdivant, the individ-
uals involved in the uncharged misconduct shootings.
See footnote 7 of this opinion. In response, the state
argues that the prosecutor’s references to the defen-
dant’s gang involvement and the evidence thereof were
relevant to the defendant’s motive for killing McIver.
We begin by addressing the defendant’s claim with
respect to the prosecutor’s comments. In his brief, the
defendant directs this court to several comments made
by the prosecutor during closing and rebuttal argu-
ments. Specifically, the defendant contends that the
prosecutor committed impropriety when she dedicated
the first few minutes of her closing argument to detail-
ing the ‘‘gang culture in New Haven and what it means
for young men in . . . New Haven,’’ and that ‘‘during
a six week period . . . there was a lot of violence
between these gangs.’’ We are not persuaded.
In State v. Taylor, 239 Conn. 481, 503, 687 A.2d 489(1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138
L. Ed. 2d 1017 (1997), the defendant argued that the
prosecutor ‘‘made several prejudicial and inappropriate
remarks regarding his affiliation with the Latin Kings
during its closing argument . . . .’’ Specifically, ‘‘[i]n
its closing argument, the state asked the jury to deter-
mine that [the defendant’s] Latin King pride about being
asked to leave the bar . . . caused him to return for
retribution, that he intentionally and maliciously killed
[the victim].’’ (Internal quotation marks omitted.) Id.,
501. Our Supreme Court concluded that the prosecu-
tor’s remarks did not constitute impropriety. The court
reasoned that the defendant admitted to being a mem-
ber of the gang and the prosecutor’s comments ‘‘were
limited to establishing [the defendant’s] motive for the
killing.’’ Id., 503. Our Supreme Court has concluded
that references to evidence of gang affiliation are not
improper so long as they are limited to a proper pur-
pose, such as motive. See State v. Wilson, 308 Conn.
412, 430–31, 64 A.3d 91 (2013).
In the present case, although the defendant did not
testify, there were several witnesses that self-identified
as active members of a gang, as well as identified the
defendant as their fellow or rival gang member. Further-
more, evidence presented during trial revealed that
McIver’s murder stemmed from an ongoing dispute
between rival gangs that seemed to continue in the
months after the murder. Although the prosecutor’s
comments were broad with respect to gang life in New
Haven, we conclude that they were relevant insofar as
they were limited to motive.
With regard to the defendant’s claim that that the
prosecutor committed impropriety by eliciting testi-
mony about his gang affiliation, we conclude that this
is an evidentiary challenge masked as prosecutorial
impropriety. Therefore, we address this part of the
defendant’s claim as evidentiary.
As previously noted, the defendant did not object to
such evidence during the trial; however, he seeks review
pursuant to 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). See footnote 13
of this opinion. To qualify for Golding review, the defen-
dant must meet four conditions.15 See State v. Golding,
supra, 239–40. ‘‘In the absence of any one of these
conditions, the defendant’s claim will fail.’’ Id., 240. In
accordance with Connecticut jurisprudence, we con-
clude that the defendant’s claim as to the evidence of
his gang affiliation does not meet the third requirement
for Golding review—that the alleged constitutional vio-
lation exists and deprived the defendant of a fair trial—
and, as a result, this portion of his claim fails. See State
v. Taylor, supra, 239 Conn. 502–503 (Golding review
denied because admission of evidence of gang involve-
ment not constitutional violation depriving defendant
of fair trial); see also State v. Torres, 47 Conn. App.
149, 159, 702 A.2d 142 (1997), cert. denied, 243 Conn.
963, 707 A.2d 1267 (1998).
Accordingly, we conclude that the prosecutor’s com-
ments about the defendant’s gang affiliation did not
constitute prosecutorial impropriety. We further con-
clude that the defendant’s challenge to the evidence
pertaining to his gang affiliation is not properly before
this court.
C
Finally, the defendant argues that the prosecutor
improperly stated, during closing argument, that the
defendant confessed to Ferguson at the Jocelyn Square
Park meeting that he had killed McIver. The defendant
argues that Ferguson was not present at the meeting and
that by incorrectly placing him there, the prosecutor
bolstered the testimony of other witnesses whose verac-
ity about whether that meeting occurred was brought
into question during trial. The state concedes that the
prosecutor misstated the evidence with regard to where
the defendant confessed to Ferguson; however, the
state maintains that such a misstatement does not con-
stitute prosecutorial impropriety because Ferguson tes-
tified that the defendant confessed to the murder. We
agree with the state.
This court previously has recognized that ‘‘closing
argument and closing rebuttal argument can require
counsel to think on [their] feet and quickly recall and
comment on evidence that was presented at trial, all
while also reacting to arguments advanced by opposing
counsel. Under such circumstances, it is appropriate
that counsel be afforded some leeway for minor mis-
statements . . . in order to not impede counsel from
zealously advocating for clients. . . . [I]n the heat of
argument, counsel may be forgiven for hitting the nail
slightly off center but not wholly inventing ‘facts.’ To
conclude that [an] isolated [misstatement] constitute[s]
a prosecutorial impropriety and that the defendant suf-
fered harm from [it], we would need to minutely exam-
ine the prosecutor’s word choice in a vacuum, ignoring
the broader context of the whole trial. This is not an
appropriate approach to such considerations.’’ (Cita-
tion omitted.) State v. Danovan T., 176 Conn. App. 637,
651–52, 170 A.3d 722 (2017), cert. denied, 327 Conn.
992, 175 A.3d 1247 (2018). Additionally, ‘‘[t]here is a
distinction between misstatement and misconduct.’’
(Internal quotation marks omitted.) State v. Chankar,
173 Conn. App. 227, 255, 162 A.3d 756, cert. denied, 326
Conn. 914, 173 A.3d 390 (2017). Not every misstatement
constitutes impropriety.
During trial, the jury heard from Ferguson himself
that, while he and the defendant were at Ferguson’s
home, the defendant confessed to killing McIver. At the
conclusion of trial, the jury also heard the prosecutor
incorrectly state that the defendant’s confession to Fer-
guson took place at a park. It is clear to this court
that the prosecutor misspoke. ‘‘[T]he burden [however]
[falls] on the defendant to demonstrate that the remarks
were so prejudicial that he was deprived of a fair trial
and the entire proceedings were tainted.’’ (Internal quo-
tation marks omitted.) Id., 253. This the defendant has
not done. What is significant is that the admission was
made, not where it was made. Therefore, we are not
persuaded that, viewed in the larger context of the
whole trial, this one isolated misstatement by the prose-
cutor constitutes impropriety.
In summary, in light of the strength of the state’s
overall case, notwithstanding the prosecutor’s arguably
improper use of the defendant’s nickname, the defen-
dant’s due process right to a fair trial was not violated
because we do not find that ‘‘there is a reasonable
likelihood that the jury’s verdict would have been differ-
ent . . . .’’ State v. Thompson, 266 Conn. 440, 460, 832
A.2d 626 (2003).
III
The defendant’s third claim is that his right to due
process was violated because the state withheld materi-
ally favorable evidence. Specifically, he claims that the
state failed to disclose that it provided lodging and
money for food and incidental expenses to a witness,
Marcus Ratchford, who testified about the defendant’s
involvement in the September 16, 2011 shooting on
Hamilton Street. He argues that such a benefit created
a motive for Ratchford to testify favorably for the state
and, if that information had been presented to the jury,
there is a reasonable probability the defendant would
not have been convicted. The state concedes that it
failed to disclose its arrangement with Ratchford; how-
ever, it argues that the suppression of this evidence
was immaterial. We agree with the state.
Whether the defendant was deprived of his due pro-
cess rights pursuant to a Brady violation; see Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963); is a question of law, over which we exercise
plenary review. See Walker v. Commissioner of Correc-
tion, 103 Conn. App. 485, 491, 930 A.2d 65, cert. denied,
284 Conn. 940, 937 A.2d 698 (2007). ‘‘Our analysis of
the defendant’s claim begins with the pertinent stan-
dard, set forth in Brady and its progeny, by which
we determine whether the state’s failure to disclose
evidence has violated a defendant’s right to a fair trial.
In Brady, the United States Supreme Court held that the
suppression by the prosecution of evidence favorable
to an accused upon request violates due process where
the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of
the prosecution.’’ (Emphasis added; internal quotation
marks omitted.) State v. Skakel, 276 Conn. 633, 699–700,
888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578,
166 L. Ed. 2d 428 (2006). ‘‘In order to prove a Brady
violation, the defendant must show: (1) that the prose-
cution suppressed evidence . . . (2) that the evidence
was favorable to the defense; and (3) that the evidence
was material.’’ (Internal quotation marks omitted.) Diaz
v. Commissioner of Correction, 174 Conn. App. 776,
795, 166 A.3d 815, cert. denied, 327 Conn. 957, 172 A.3d
204 (2017). ‘‘If the [defendant] fails to meet his burden
as to one of the three prongs of the Brady test, then we
must conclude that a Brady violation has not occurred.’’
(Internal quotation marks omitted). Peeler v. Commis-
sioner of Correction, 170 Conn. App. 654, 688, 155 A.3d
772, cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017).
It is important to note, however, that ‘‘[n]ot every failure
by the state to disclose favorable evidence rises to the
level of a Brady violation.’’ Adams v. Commissioner
of Correction, 309 Conn. 359, 370, 71 A.3d 512 (2013).
Because the state concedes that the evidence at issue
was favorable to the defendant and that it was sup-
pressed by the state—the first and second Brady
prongs—but maintains that the evidence was immate-
rial, we address only the third Brady prong. Under the
third prong of Brady, ‘‘evidence will be deemed material
only if there would be a reasonable probability of a
different result if the evidence had been disclosed. [The]
touchstone of materiality is a reasonable probability of
a different result, and the adjective is important. The
question is not whether the defendant would more likely
than not have received a different verdict with the evi-
dence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy
of confidence. A reasonable probability of a different
result is accordingly shown when the government’s evi-
dentiary suppression undermines confidence in the out-
come of the trial.’’ (Internal quotation marks omitted.)
Adams v. Commissioner of Correction, supra, 309
Conn. 370–71.
As it is relevant to this case and the third Brady
prong, ‘‘[t]he United States Supreme Court also has
recognized that [a] jury’s estimate of the truthfulness
and reliability of a . . . witness may well be determina-
tive of guilt or innocence, and it is upon such subtle
factors as the possible interest of the witness in testi-
fying falsely that a defendant’s life or liberty may
depend. . . . [I]mpeachment evidence . . . broadly
defined, is evidence having the potential to alter the
jury’s assessment of the credibility of a significant pros-
ecution witness.’’ (Citations omitted; internal quotation
marks omitted.) Adams v. Commissioner of Correc-
tion, supra, 309 Conn. 369–70. ‘‘[I]mpeachment evi-
dence may be crucial to a defense, especially when
the state’s case hinges entirely upon the credibility of
certain key witnesses. . . . Implicit in the standard of
materiality is the notion that the significance of any
particular bit of evidence can only be determined by
comparison to the rest. . . . In this connection, it is
important to the Brady calculus whether the effect of
any impeachment evidence would have been cured by
the rehabilitative effect of other testimony. . . . In
determining whether impeachment evidence is mate-
rial, the question is not whether the verdict might have
been different without any of [the witness’] testimony,
but whether the verdict might have been different if
[the witness’] testimony [was] further impeached by
disclosure of the [impeachment evidence].’’ (Citation
omitted; internal quotation marks omitted.) Elsey v.
Commissioner of Correction, 126 Conn. App. 144, 158–
59, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d
1007 (2011).
The following additional facts are relevant to our
analysis. After the trial was completed, the defendant
learned that the state had provided Ratchford with a
hotel room and $40 a day for food and other expenses,
prior to his testimony in the underlying trial. The defen-
dant believed that such undisclosed action constituted
a Brady violation and, as a result, filed a motion for
rectification for a hearing in which to question Ratch-
ford so that he could perfect the record for this appeal.
During that hearing, Ratchford testified that he was
living with his mother at the time he was contacted by
the state, the state arranged for him and his girlfriend
to stay in a hotel and gave them money for food, he
may not have been working at the time, he did not want
to testify against the defendant but was subpoenaed by
the state, and he stated multiple times that he did not
feel that he owed the state any favorable testimony in
exchange for its hotel and food benefits.
Although the evidence of Ratchford’s arrangement
with the state was impeachment evidence that was
favorable to the defense, its relative impeachment value
was low. The fact that Ratchford received a hotel room
and food benefits from the state before testifying, when
coupled with the fact that he had not previously come
forward to testify, had some impeachment value insofar
as it suggested that he had a motive for testifying. This
impeachment value was greatly diminished, however,
by the lack of evidence, other than temporal proximity,
that Ratchford’s benefit was in any way related to his
decision to testify and the fact that the state had to
subpoena him in order for him to testify.
Additionally, the prosecution’s case did not hinge
entirely on the testimony of Ratchford. Rather, as pre-
viously noted, there was ample evidence to support the
defendant’s conviction. See Elsey v. Commissioner of
Correction, supra, 126 Conn. App. 160; see also part II
of this opinion. Therefore, the state’s failure to disclose
its arrangement with Ratchford does not undermine
our confidence in the jury’s verdict, as there was not
a reasonable probability that the jury would have
reached a different verdict if it had considered this
undisclosed impeachment evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
This appeal arises from the retrial of the defendant. The defendant’s
first jury trial resulted in a hung jury on all charges. A separate charge of
criminal possession of a firearm was tried to the court. The court found
the defendant guilty of that charge and sentenced him to five years incarcera-
tion. The defendant appealed from that conviction and this court affirmed
the judgment of the trial court. State v. Harris, 183 Conn. App. 865, 867,
193 A.3d 1223, cert. denied, 330 Conn. 918, 193 A.3d 1213 (2018). After the
mistrial, the state retried the defendant and, in the second trial, he was
found guilty by the jury on all charges.
2
McIver died from five to six gunshot wounds, including shots to his
back, chest, right forearm, and head.
3
Further discussion and analysis on the uncharged misconduct hearing
is found in part I of this opinion.
4
According to Williams, the first robbery occurred on the corner of Dewitt
Street and Lamberton Street, the second robbery occurred on the corner
of Lamberton Street and Wilson Street, and the third robbery occurred on
Rosette Street.
5
The defendant was sentenced to sixty years of incarceration for murder,
twenty years of incarceration for robbery, to be served consecutively to the
sentence for murder, and five years of incarceration for carrying a pistol
without a permit, to be served concurrently with the sentences for murder
and robbery.
6
In his brief, the defendant argues that he preserved his claim by filing
a motion in limine to establish fair procedures for determining the admissibil-
ity of evidence concerning uncharged crimes or acts of misconduct. The
state, however, correctly points out that the defendant filed his motion in
limine in the first jury trial and not the second jury trial. Accordingly, the
defendant’s motion in limine was applicable to the first jury trial, not the
subsequent retrial.
7
At the scene of the McIver shooting, the police found nine millimeter
shell casings. In order to establish that the defendant had access to the
guns used to shoot McIver, the prosecutor presented evidence that the
defendant had committed three other shootings in the weeks following
McIver’s death, and that shell casings from those subsequent shootings
matched those found at the scene of the McIver shooting.
The facts involving the subsequent shootings are as follows. Luis Padilla,
a fellow Blood, testified at trial that on August 1, 2011, the defendant shot
at Padilla along with his associate, D’Andre Bell, while they were riding
their bikes (August 1, 2011 shooting). The second subsequent shooting
took place on August 15, 2011, on Arch Street. That shooting involved the
defendant and Kenneth Sturdivant (August 15, 2011 shooting). The third
subsequent shooting took place on September 16, 2011, on Hamilton Street
in New Haven (September 16, 2011 shooting). During trial, Marcus Ratchford,
the brother of the defendant’s girlfriend, testified that, moments before the
September 16, 2011 shooting, he gave the defendant a ride to Hamilton
Street. According to Ratchford, after the defendant fired a gun and returned
to Ratchford’s car, Ratchford saw the defendant holding a gun that had the
letters ‘‘XP’’ or ‘‘XD’’ on it—the same letters that were on McIver’s gun.
8
The defendant contends that the record is adequate for review. We
disagree.
9
During the uncharged misconduct hearing, the court appeared to explain
what it meant to sanitize evidence: ‘‘[Y]ou could have a witness who testified
that at this time and place, which is nearby, there was a shooting, and that
certain cartridge casings found investigating that shooting matched up with
the weapon that you say is the murder weapon here.’’ From the transcript,
it appears to this court that the sanitization instruction to the prosecutor
was a limiting instruction, in that the court was aiming to mitigate any
prejudice stemming from the uncharged misconduct by limiting what infor-
mation the jury would hear. The court’s instruction aligns with what our
Supreme Court recognized in Collins, that a witness should be admonished
‘‘that any testimony about the [uncharged shooting] was to be limited only
to the fact that there was a shooting, with no other details regarding the
events of that day.’’ State v. Collins, supra, 299 Conn. 589. The court in
Collins further recognized that such actions by the trial court ‘‘are significant
because the care with which the [trial] court weighed the evidence and
devised measures for reducing its prejudicial effect militates against a finding
of abuse of discretion.’’ (Internal quotation marks omitted.) Id.10
In his brief, the defendant argues that it was plain error to admit evidence
concerning the shootings with which he was not charged. He does not make
the same argument with regard to the robberies with which he was not
charged. Accordingly, our plain error analysis will address only the
uncharged shootings.
11
Our Supreme Court has held that when ‘‘determining whether the preju-
dicial effect of otherwise relevant evidence outweighs its probative value,
we consider whether: (1) . . . the facts offered may unduly arouse the
[jurors’] emotions, hostility, or sympathy, (2) . . . the proof and answering
evidence it provokes may create a side issue that will unduly distract the
jury from the main issues, (3) . . . the evidence offered and the count-
erproof will consume an undue amount of time, and (4) . . . the defendant,
having no reasonable ground to anticipate the evidence, is unfairly surprised
and unprepared to meet it.’’ (Internal quotation marks omitted.) State v.
Collins, supra, 299 Conn. 587.
12
The trial court repeated the following instructions throughout the trial:
‘‘[Y]ou can consider the testimony of what supposedly happened in . . .
what I’ll call [a] subsequent incident for a limited purpose, and the limited
purpose is to basically bolster . . . the [state’s] case that it was the defen-
dant and not someone else who committed the crimes charged in the informa-
tion here, which of course is the homicide and robbery of July 31.
‘‘The evidence that you’ve heard about and are going to hear about these
other alleged acts of misconduct are limited to that limited purpose, and
the bottom line is that you’re expressly prohibited from using evidence like
this which I anticipate is forthcoming for the evidence . . . to show any
bad character of the defendant or propensity to commit a criminal act.
‘‘If you find the evidence credible and if you find that it logically and
reasonably supports the issues for which it’s offered, namely that the defen-
dant was the author of the crime charged in the information here, then you
can use it for that purpose if you find it credible.
‘‘But on the other hand, if you don’t believe the evidence or even if you
do, if you believe it doesn’t logically and reasonably support the proposition
that the defendant was the perpetrator of the . . . crimes alleged in the
information, then obviously you should not use this for any purpose.’’
13
The defendant raises this claim for the first time on appeal and seeks
review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989). His claim, however, is reviewable pursuant to our Supreme Court’s
holding in State v. Stevenson, 269 Conn. 563, 572–75, 849 A.2d 626 (2004).
In Stevenson, our Supreme Court concluded that, in cases of alleged prosecu-
torial impropriety, ‘‘it is unnecessary for the defendant to seek to prevail
under the specific requirements of State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court
to apply the four-prong Golding test. The reason for this is that the touch-
stone for appellate review of claims of prosecutorial [impropriety] is a
determination of whether the defendant was deprived of his right to a fair
trial, and this determination must involve the application of the factors set
out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653(1987).’’ (Footnote omitted.) State v. Stevenson, supra, 572–73.
14
Surveillance video footage from the commercial property on Ella Grasso
Boulevard was presented at trial. Williams identified himself, McIver, and
the defendant in the video. Williams also identified the defendant shooting
McIver, placing his gun next to McIver, grabbing McIver’s gun and phone,
then fleeing the scene.
15
The four conditions are: ‘‘(1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial; and (4) if subject to
harmless error analysis, the state has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reasonable doubt.’’ (Footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.