State v. LaVoie

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. JOHN JOSEPH LAVOIE
(AC 37184)
Beach, Keller and Harper, Js.
Argued April 9—officially released June 30, 2015
(Appeal from Superior Court, judicial district of
Litchfield, Ginocchio, J.)
Richard Emanuel, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were David Shepack,
state’s attorney, and Dawn Gallo, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, John Joseph LaVoie,
appeals from the judgment of conviction, rendered after
a jury trial, on two counts of assault in the first degree
in violation of General Statutes § 53a-59 (a) (1) and (5).1
The defendant claims that (1) the trial court erred by
(a) denying his motion to introduce the testimony of an
expert witness and (b) failing to conduct an evidentiary
hearing sua sponte on his offer of proof regarding the
expert witness’ proffered testimony, (2) the trial court
erred by declining his request to provide the jury with
an instruction on intoxication, and (3) prosecutorial
improprieties occurred when the prosecutor made
improper comments during her closing argument and,
as a result, he was deprived of his right to a fair trial
or, alternatively, that this court should invoke its super-
visory authority to reverse his conviction. We affirm
the judgment of the court.
The following facts, which a reasonable jury could
have found, and procedural history are relevant here.
The defendant, who has been a paraplegic and confined
to a wheelchair since 1975, was married to the victim,
Shelly LaVoie, for twenty-three years until they divorced
in April, 2010. Sometime toward the end of September
or early October, 2009, the defendant began to suspect
that the victim was having an affair. He confronted her
about his suspicions in early October, 2009, but she
denied his accusations.
The defendant continued to question the victim’s
fidelity. He hired a private investigator sometime in
October or November, 2009, to identify the source of
a telephone number that he had discovered on the vic-
tim’s primary cell phone account and to follow her on
one occasion when she told the defendant that she was
going shopping. On the day that the private investigator
followed the victim, he observed her meeting with
Lenny Morey, who was employed at the time as the
defendant’s landscaper and handyman, at a K-Mart
shopping center in Torrington. The defendant, assuming
that the victim was having an affair with Morey, con-
fronted Morey at his Torrington home sometime in
November, 2009. Morey denied the defendant’s accusa-
tion that he was having an affair with the victim and
stated that they merely shared a platonic friendship.
Morey also informed the defendant that the victim
owned a second cell phone of which the defendant was
unaware, and provided the defendant with the tele-
phone number for her second cell phone.2 The defen-
dant fired Morey from his employment after their
conversation.
In early or mid-November, 2009, without the victim’s
knowledge, the defendant placed a global positioning
system (GPS) device and a tape recorder in a car that
he shared with the victim. Shortly thereafter, the tape
recorder recorded a romantic encounter between the
victim and Morey together in the car. On November 20,
2009, the defendant informed the victim that he knew
of her second cell phone, that he had hired a private
investigator to follow her, and that he had tape-recorded
a romantic encounter between her and Morey. After
hearing the recording, the victim admitted to having an
affair with Morey and agreed to end her relationship
with Morey. The following day, on November 21, 2009,
the victim met with Morey to end their relationship.
While the victim met with Morey, the defendant
remained at their marital home in Litchfield and tracked
the victim’s whereabouts via the GPS. According to the
GPS data, the victim spent approximately one and one-
half hours with Morey, which troubled the defendant.
The defendant subsequently asked the victim why she
had spent an extended period of time with Morey, to
which she responded that she had a sore throat and
did not want to discuss the matter. The next day on
November 22, 2009, the victim told the defendant that
she was taking her brother’s children to a movie theater.
The defendant used the GPS device to track her move-
ments and observed the victim driving in the vicinity
of Morey’s home. Upon returning home, the defendant
questioned the victim about her whereabouts that day,
but she refused to respond due to her sore throat.
On November 23, 2009, the defendant traveled to the
Litchfield town clerk’s office to obtain a hunting license
application. Afterward, he went to a store called Tacti-
cal Arms and registered for a gun training class. He
subsequently traveled to a store called Dick’s Sporting
Goods, located in Canton, to purchase a box of .22
caliber bullets and two .22 caliber bullet magazines.
Later in the day, he manually loaded each magazine with
ten bullets, the maximum capacity that each magazine
could hold, and attached one of the magazines to a .22
rifle he owned. Finally, he visited an attorney to discuss
filing for divorce from the victim.
On the morning of November 24, 2009, the defendant
and the victim were at their marital home preparing
to go shopping. The victim went outside to retrieve a
newspaper from their mailbox, which was located at
the end of their driveway. The defendant believed that
the victim had been outside retrieving the newspaper
for an extended period of time and grew suspicious
that she was talking to someone on her second cell
phone. When she returned with the newspaper, the
defendant asked her whether she had been speaking
with someone on the phone while outside. The victim
responded that she did not bring either of her cell
phones with her, and that her second cell phone was
charging upstairs. The defendant ordered the victim to
go upstairs to retrieve her second cell phone.
After the victim ventured upstairs, the defendant
went to the garage and retrieved the .22 rifle. The defen-
dant returned from the garage, with the rifle resting on
the side of his wheelchair out of plain sight, and waited
near the staircase for the victim to return. Shortly there-
after, the victim came down the staircase with her sec-
ond cell phone. The defendant, without revealing the
rifle, ordered the victim to give him the cell phone. She
refused and began walking away from him. At that point,
the defendant placed the rifle onto his lap and again
ordered the victim to give him the cell phone. Upon
seeing the rifle, the victim began running away from
the defendant toward their bedroom. The defendant
followed her. The victim attempted to shut the door to
the bedroom, but the defendant managed to use his
wheelchair to prevent the door from closing and entered
the room. The victim then ran into the bathroom adja-
cent to their bedroom and attempted to close the door
behind her, but the defendant managed to use his wheel-
chair to keep the door to the bathroom ajar. The victim
went toward the window in the bathroom with the
intent to open its locks, but before she could get to the
window, the defendant entered the bathroom and again
demanded that she give him the cell phone. When the
victim turned to face the defendant, he had the rifle
pointed at her with his finger on the trigger and the
safety lock on the rifle turned off.3 The victim attempted
to escape the bathroom by running around and past
the defendant, but she tripped over either a laundry
basket or the defendant in his wheelchair and fell to
the floor. The defendant then shot the victim in her
right leg and threatened to shoot her again in her back.4
The victim managed to stand up, and a struggle
ensued, during which she shoved the defendant into
the bedroom, pushed him out of his wheelchair, grabbed
the rifle, and threw the rifle onto their bed. As the
victim attempted to escape the bedroom, the defendant
grabbed her around her legs and bit down on one of
her pant legs with his teeth. With his hands, he also
latched onto the sweater she was wearing. The victim
dragged the defendant, who did not release his bite on
her pant leg, out of the bedroom, down a hallway,
through the dining room, through the kitchen, and
finally outside through a doorway that had an attached
screen door. She hit the defendant with the screen door
multiple times, which caused him to release his bite on
her pant leg. She then entered her car and drove herself
to Charlotte Hungerford Hospital in Torrington, where
she was treated for her injuries.
After the victim had driven away, the defendant
crawled back into his wheelchair, which had been left
in the bedroom. He then retrieved another weapon, a
shotgun, he had stored in a closet, went to the kitchen
and contemplated committing suicide. Throughout the
remainder of the day, the defendant had telephone con-
versations with a number of other individuals, including
police officers. During one of the conversations with
a police officer, the defendant admitted to shooting
the victim.
At 10:30 a.m. on November 24, 2009, the state police
received a 911 call from the victim’s mother, alerting
them that the defendant had shot the victim. The police
arrived outside the marital home shortly after 10:30 a.m.
After a lengthy standoff, the defendant exited the home
and surrendered to the police at approximately 8:10
p.m. that evening. The police escorted the defendant
to Charlotte Hungerford Hospital to be evaluated. The
defendant informed the staff at the hospital that he had
loaded his rifle and had shot the victim, and also made
the following statements: ‘‘I could have killed [the vic-
tim]. I am military trained, but I didn’t, I don’t want her
dead. . . . I am so sorry she got shot, I don’t want to
hurt her anymore . . . .’’
The defendant was charged with two counts of
assault in the first degree in violation of § 53a-59 (a)
(1) and (5).5 The jury found him guilty on both counts
and subject to a sentence enhancement under General
Statutes § 53-202k. The court merged the counts and
sentenced the defendant to a total effective term of ten
years incarceration followed by five years of probation.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the court abused its
discretion by denying his motion to introduce the expert
testimony of David Levi, a physician specializing in pain
management who had treated the defendant before the
shooting. In addition, he claims that the court erred by
failing to conduct an evidentiary hearing sua sponte on
the defendant’s offer of proof regarding Levi’s proffered
testimony. We conclude that because Levi’s proffered
testimony was not relevant, the court did not abuse its
discretion by denying the motion, and it did not err by
failing to conduct an evidentiary hearing sua sponte on
the defendant’s offer of proof regarding Levi’s prof-
fered testimony.
The following additional facts are relevant here. Dur-
ing trial proceedings on November 29, 2012, the defen-
dant filed a written motion to call Levi as an expert
witness. Previously during trial, Alison Tieman, a nurse
who had examined the defendant at Charlotte Hun-
gerford Hospital after the shooting, testified that she
had documented that the defendant was experiencing
no pain when he arrived at the hospital. The defendant
offered to call Levi as an expert witness to testify that
he was constantly experiencing pain, as a consequence
of physical impairments he had sustained that predated
the events at issue here, in order to rebut Tieman’s
testimony suggesting that he was not experiencing any
pain when he arrived at the hospital and to impeach
her credibility. The state opposed the motion, arguing
that the defendant had failed to disclose Levi as a wit-
ness in a timely manner and that Levi’s testimony was
not relevant because Levi had not spoken with or evalu-
ated the defendant on the day of the shooting. The
court, concluding that the evidence was not relevant,
denied the defendant’s motion.6
A
The defendant first claims that the court abused its
discretion by denying his motion to introduce Levi’s
testimony. Specifically, he asserts that Levi’s proffered
testimony was relevant and that its exclusion harmed
him. We disagree.
We begin by setting forth the relevant standard of
review and legal principles. ‘‘[T]he trial court has wide
discretion in ruling on the admissibility of expert testi-
mony and, unless that discretion has been abused or
the ruling involves a clear misconception of the law,
the trial court’s decision will not be disturbed. . . .
In determining whether there has been an abuse of
discretion, the ultimate issue is whether the court could
reasonably conclude as it did.’’ (Internal quotation
marks omitted.) State v. Collin, 154 Conn. App. 102,
114, 105 A.3d 309 (2014), cert. denied, 315 Conn. 924,
109 A.3d 480 (2015).
‘‘[E]vidence is admissible only if it is relevant. . . .
Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is irrele-
vant or too remote if there is such a want of open and
visible connection between the evidentiary and princi-
pal facts that, all things considered, the former is not
worthy or safe to be admitted in the proof of the latter.
. . . The proffering party bears the burden of establish-
ing [relevance].’’ (Citation omitted; internal quotation
marks omitted.) McBurney v. Paquin, 302 Conn. 359,
378, 28 A.3d 272 (2011); see also Conn. Code Evid. § 4-1.
The defendant contends that Levi’s proffered testi-
mony was relevant because it would have impeached
Tieman’s testimony indicating that the defendant was
experiencing no pain at the hospital, as well as other
aspects of her testimony. According to the defendant,
Levi would have testified that the defendant was con-
stantly experiencing pain due to physical impairments
that he had sustained prior to the events at issue here.
Furthermore, he contends that Levi’s proffered testi-
mony would have included a discussion concerning the
painkillers used by the defendant, which would have
been relevant to the issue of whether the defendant
was intoxicated at the time of the shooting.
We conclude that the court did not abuse its discre-
tion by excluding Levi’s proffered testimony on the
basis of its determination that it was not relevant.7 As
the court and the state noted, Levi did not speak to
or examine the defendant on the day of the shooting.
Although Levi may have offered testimony regarding
the defendant’s past history of experiencing pain, his
proffered testimony would not have addressed the issue
for which the defendant made the offer of proof:
whether and to what extent the defendant was experi-
encing pain on the day of the shooting. As a result,
Levi’s proffered testimony would not have impeached
Tieman’s testimony indicating that the defendant was
not experiencing pain at the hospital or implicated the
issue of whether the defendant was intoxicated at the
time of the shooting.8
For the foregoing reasons, the court did not abuse
its discretion by denying the defendant’s motion to
introduce Levi’s testimony.
B
The defendant next claims that the court erred by
failing to conduct an evidentiary hearing sua sponte on
the defendant’s offer of proof regarding Levi’s proffered
testimony. Specifically, he claims that the court had an
obligation to order an evidentiary hearing sua sponte
because its exclusion of Levi’s testimony ‘‘implicate[d]
the fairness of the proceedings and the defendant’s core
constitutional rights . . . .’’ (Internal quotation marks
omitted.) We disagree.
We begin by setting forth the relevant standard of
review. Whether the court had an obligation to conduct
an evidentiary hearing sua sponte presents a question
of law over which we exercise plenary review. See
Gagne v. Vaccaro, 154 Conn. App. 656, 671, 109 A.3d
500 (2015).
In support of his claim, the defendant cites State v.
Sullivan, 244 Conn. 640, 712 A.2d 919 (1998), and State
v. Shaw, 312 Conn. 85, 90 A.3d 936 (2014). Neither case
supports his assertion. In Sullivan, our Supreme Court
stated that ‘‘[a] trial court’s duty of independent inquiry
. . . arises in situations implicating the fundamental
fairness of the proceedings and the defendant’s core
constitutional trial rights. We never have held that a
trial court has an independent obligation to order, sua
sponte, a hearing on an evidentiary matter, in the
absence of both a request for a hearing and an adequate
offer of proof.’’ (Emphasis added.) State v. Sullivan,
supra, 650–51 n.14. Here, the defendant did not request
an evidentiary hearing and, as we previously concluded,
his offer of proof concerned evidence that the court
properly deemed to be not relevant.
In Shaw, our Supreme Court stated that ‘‘[i]n order to
carry [the] threshold burden of establishing relevance, a
defendant must make an offer of proof as a prerequisite
to obtaining an evidentiary hearing to determine the
admissibility of evidence . . . . The preliminary show-
ing must be sufficient to demonstrate that the evidence
sought to be explored in the evidentiary hearing is rele-
vant . . . [and] to enable the trial court to make an
informed ruling in connection with the exercise of its
discretion on the issue. . . . When a defendant’s core
constitutional rights are implicated, a trial court is obli-
gated to order, sua sponte, an evidentiary hearing on
an offer of proof to determine whether the evidence is
admissible.’’ (Citation omitted; footnote omitted; inter-
nal quotation marks omitted.) State v. Shaw, supra, 312
Conn. 105–106. The foregoing language requires a trial
court to hold an evidentiary hearing on a defendant’s
offer of proof in situations wherein a defendant’s core
constitutional rights are implicated once the defendant
has met the prerequisite showing that the proffered
evidence is relevant. In contrast to what the defendant
appears to suggest, Shaw did not remove from him the
burden to make the preliminary showing that Levi’s
proffered testimony was relevant prior to receiving an
evidentiary hearing. As we previously concluded, Levi’s
proffered testimony was not relevant and, therefore, an
evidentiary hearing to determine the admissibility of
Levi’s testimony was unnecessary.
For the foregoing reasons, the court did not err by
failing to conduct an evidentiary hearing sua sponte on
the admissibility of Levi’s testimony.
II
The defendant next claims that the court erred by
declining his request to provide the jury with an instruc-
tion on intoxication. Specifically, he asserts that the
evidence was sufficient to show that he was impaired
by intoxicating substances at the time of the shooting
and, therefore, an instruction on intoxication was war-
ranted. We disagree.
The following additional facts are relevant here. On
December 4, 2012, while the court and the parties were
waiting for a witness to arrive at the courthouse, the
court began conducting a charge conference. The defen-
dant submitted to the court a written instruction on
intoxication that he wanted the court to provide to the
jury. He argued that the evidence then currently in the
record, along with evidence that had yet to be intro-
duced, was sufficient to support a finding that he was
intoxicated at the time of the shooting. The state
opposed the instruction, arguing that there was no evi-
dence to support a finding that the defendant was intoxi-
cated at the time of the shooting. According to the
state, although the defendant had testified that he had
ingested four Tramadol pills prior to shooting the vic-
tim, his testimony did not warrant an instruction on
intoxication because he neither provided testimony that
the Tramadol pills impaired him nor introduced expert
testimony explaining to the jury the effects of Tramadol.
The court declined to instruct the jury on intoxication,
concluding that there was insufficient evidence to sup-
port a finding that the defendant was intoxicated at
the time of the shooting and that such an instruction
potentially would lead the jury to speculate in regard
to the issue.
The following day, on December 5, 2012, the court
continued the charge conference after the evidentiary
portion of the trial had concluded. The defendant
renewed his request for the court to instruct the jury
on intoxication, citing additional evidence that he
argued was sufficient to support a finding that he was
intoxicated at the time of the shooting. The state
objected to the request, reasserting its previous argu-
ment that the evidence was insufficient to support a
finding that the defendant was intoxicated at the time
of the shooting and that the defendant had not intro-
duced any expert testimony discussing the impairing
effects of any of the substances that allegedly impacted
him at the time of the shooting. Following argument,
the court denied the request, again determining that
the evidence failed to support a finding that the defen-
dant was intoxicated at the time of the shooting.
We begin by setting forth the relevant standard of
review and legal principles. ‘‘It is the law of this state
that a request to charge which is relevant to the issues
of [a] case and which is an accurate statement of the
law must be given.’’ (Internal quotation marks omitted.)
State v. Morgan, 86 Conn. App. 196, 213, 860 A.2d 1239(2004), cert. denied, 273 Conn. 902, 868 A.2d 746 (2005).
‘‘[E]vidence of a defendant’s intoxication is relevant to
negate specific intent which is an essential element
of the crime of [assault in the first degree]. . . . [A]n
instruction on intoxication [therefore] would be war-
ranted [in the present case] if sufficient evidence was
introduced to justify it. . . . Because the state has the
burden of proving the element of specific intent, the
quantum of evidence essential to warrant consideration
of the effect of intoxication on the defendant can be no
greater than that which might have raised a reasonable
doubt as to the existence of the specified mental state.’’
(Citations omitted; internal quotation marks omitted.)
State v. Morales, 71 Conn. App. 790, 815, 804 A.2d 902,
cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). ‘‘Had
evidence been adduced that the defendant was so intox-
icated at the time of the commission of [the] offense
that he was unable to form a specific intent, the court
would have been remiss in failing to instruct the jury
on this principle.’’ State v. Clemons, 168 Conn. 395, 406,
363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104,
46 L. Ed. 2d 80 (1975). ‘‘The jury is permitted to infer
from the fact that an intoxicating substance was
ingested that an incapacity to form a specific intent
resulted. . . . This does not mean, however, that only
the slightest evidence of the possibility of intoxication
is sufficient to require a court to give a requested charge
on intoxication and specific intent.’’ (Internal quotation
marks omitted.) State v. Morales, supra, 815–16.
Upon a careful review of the record, we conclude
that the court did not err by declining the defendant’s
request to instruct the jury on intoxication. Viewed in
the light most favorable to the defendant’s request; see
State v. Collin, supra, 154 Conn. 128; the evidence sup-
ported a finding that the defendant had ingested Valium,
Percocet, and Tramadol on the day prior to the shooting.
The evidence further supported a finding that, on the
day of the shooting, the defendant ingested four Trama-
dol pills at some point prior to the shooting, was wear-
ing two fentanyl patches at some point during the day,
and ingested five oxycodone-acetaminophen pills at
some point during the day, though he tested negative
for oxycodone-acetaminophen at the hospital after the
shooting.9 The defendant’s testimony did not suggest
that he was impaired by the foregoing substances at
the time of the shooting, as he cogently testified that
he and the victim intended to go shopping on the day
of the shooting; he went to the garage to retrieve the
rifle; he initially hid the rifle from the victim’s plain
sight; he intentionally placed the rifle onto his lap; he
pursued the victim into their bedroom and bathroom
and used his wheelchair to prevent her from barring
his entry into both rooms; he pointed the rifle at the
victim while in the bathroom with his finger on the
trigger; and he bit the victim’s pant leg and held onto
it with his teeth while she dragged him from the bed-
room to the front door. The defendant’s clear, coherent,
and detailed account of the shooting and its surrounding
circumstances ‘‘militate[d] against any inference that
[he] was intoxicated to the point that [an intoxication]
instruction was required.’’ State v. Clemons, supra, 168
Conn. 406. Furthermore, the evidence did not provide
a clear indication of the time at which the substances
were introduced into the defendant’s system in relation
to the time of the shooting. See State v. Morales, supra,
71 Conn. App. 816 (affirming court’s refusal to provide
intoxication instruction where quantity of alcohol con-
sumed and time at which alcohol consumption occurred
in relation to time of shooting were uncertain).
Last, the defendant failed to introduce expert testi-
mony explaining to the jury the effects of the substances
he claims impaired him at the time of the shooting.
William R. Schmidt, a physician at Charlotte Hungerford
Hospital on the day of the shooting, who examined the
defendant after the shooting, testified that Tramadol is
a non-narcotic pain medication that, when overdosed,
may have overly sedating effects. Neither Schmidt nor
any other expert witness, however, testified as to
whether the defendant had overdosed on Tramadol or
whether Tramadol, either alone or in combination with
the other substances, may have impaired him at the
time of the shooting. In addition, no expert witness
testified as to the effects of fentanyl, oxycodone-acet-
aminophen, Percocet, or Valium. In contrast to the psy-
chological effects of alcohol or marijuana, we cannot
presume that the jury had common knowledge of the
effects of the discrete, complex substances that alleg-
edly impaired the defendant at the time of the shooting.
See, e.g., State v. Wade, 106 Conn. App. 467, 487–88,
942 A.2d 1085 (noting that, unlike impairing effects of
alcohol and marijuana, impairing effects of fentanyl
and Methadose are not within ‘‘common knowledge’’
of jury), cert. granted on other grounds, 287 Conn. 908,
950 A.2d 1286 (2008) (appeal withdrawn June 12, 2008),
aff’d, 297 Conn. 262, 998 A.2d 1114 (2010). Absent expert
testimony on the effects of those substances, the jury
had no basis upon which to find that the defendant was
intoxicated at the time of the shooting.
For the foregoing reasons, we conclude that the court
did not err by declining the defendant’s request to pro-
vide the jury with an instruction on intoxication.
III
Last, the defendant claims that prosecutorial impro-
prieties occurred when the prosecutor made improper
comments during her closing argument and, as a result,
he was deprived of his right to a fair trial. He argues,
alternatively, that this court should invoke its supervi-
sory authority to reverse his conviction. We disagree.
We begin by setting forth the relevant standard of
review and legal principles. ‘‘In analyzing claims of pros-
ecutorial impropriety, we engage in a two step analyti-
cal process. . . . The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry. . . . An appellate court’s determi-
nation of whether any improper conduct by the prosecu-
tor violated the defendant’s right to a fair trial is
predicated on the factors established in State v. Wil-
liams, 204 Conn. 523, 540, 529 A.2d 653 (1987). Those
factors include the extent to which the [impropriety]
was invited by defense conduct or argument . . . the
severity of the [impropriety] . . . the frequency of the
[impropriety] . . . the centrality of the [impropriety]
to the critical issues in the case . . . the strength of
the curative measures adopted . . . and the strength of
the state’s case. . . . [If] a defendant raises on appeal a
claim that improper remarks by the prosecutor deprived
the defendant of his constitutional right to a fair trial,
the burden is on the defendant to show . . . that the
remarks were improper . . . .
‘‘As [our Supreme Court] previously [has] recognized,
prosecutorial [impropriety] of a constitutional magni-
tude can occur in the course of closing arguments. . . .
When making closing arguments to the jury, [however]
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument. . . . Thus, as the state’s advo-
cate, a prosecutor may argue the state’s case forcefully,
[provided the argument is] fair and based upon the facts
in evidence and the reasonable inferences to be drawn
therefrom. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impar-
tial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence upon jurors. His conduct and language in the
trial of cases in which human life or liberty [is] at stake
should be forceful, but fair, because he represents the
public interest, which demands no victim and asks no
conviction through the aid of passion, prejudice, or
resentment. If the accused [is] guilty, he should [none-
theless] be convicted only after a fair trial, conducted
strictly according to the sound and well-established
rules which the laws prescribe. While the privilege of
counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment upon, or to suggest
an inference from, facts not in evidence, or to present
matters which the jury ha[s] no right to consider. . . .
‘‘Claims involving prosecutorial impropriety during
the course of closing argument require a court to evalu-
ate a prosecutor’s statements not for their possible
meaning, but for the manner in which the jury reason-
ably and likely would have understood them. Because
the meaning of words and statements typically is depen-
dent on the context in which they are used, a court must
carefully consider a prosecutor’s challenged statements
by carefully considering their context in the entire trial,
including the remainder of the state’s closing argu-
ment.’’ (Citations omitted; internal quotation marks
omitted.) State v. Washington, 155 Conn. App. 582, 603–
606, 110 A.3d 493 (2015).
A
The first alleged instance of prosecutorial impropri-
ety concerns comments made by the prosecutor during
her closing argument regarding a shell casing that the
police found in the bathroom where the shooting
occurred.
Before proceeding, we first set forth the following
additional, relevant facts. During trial, Michael Fitzsi-
mons, a state police officer assigned to investigate the
shooting, testified that the shell casing that the police
retrieved from the bathroom was ‘‘consistent with’’ the
projectile that was lodged in the victim’s leg.10 He further
testified that the shell casing was ‘‘consistent with’’ the
shell casings comprising the bullets that the defendant
had purchased from Dick’s Sporting Goods on the day
before the shooting as well as the bullets located inside
the magazine that the defendant had attached to the
rifle. In addition, he testified that the magazine attached
to the rifle was fully loaded when the police retrieved
the rifle from the home after the shooting. The defen-
dant testified that he had been unaware that a bullet
was in the rifle’s chamber at the time of the shooting.
During her closing argument, the prosecutor made
the following remarks: ‘‘[The victim is upstairs] for, I
think [the defendant] said, fifteen minutes. Why didn’t
[the defendant] take the ammo out of the magazine?
Why didn’t [the defendant] take the ammo out of the
gun? Why didn’t [the defendant] check the chamber?
[The defendant hasn’t] used the gun for years. [The
defendant] know[s] how to handle guns. [The defen-
dant] didn’t—[the defendant] didn’t know there was a
round in the chamber? The casing on the floor matches
the ammunition that he purchased from Dick’s. Of
course, he had that. He loaded the gun for Lenny
[Morey]. Of course, he put a round in that chamber.’’
(Emphasis added.) The defendant did not object to the
foregoing emphasized comments during trial.
The defendant asserts that the statements empha-
sized in the preceding excerpt were improper because
they mischaracterized the evidence. He claims that the
prosecutor’s statement that the shell casing
‘‘matche[d]’’ the shell casings of the bullets he pur-
chased from Dick’s Sporting Goods was incongruent
with Fitzsimons’ testimony that the shell casing was
‘‘consistent with’’ the shell casings of the bullets the
defendant had purchased. The defendant interprets Fit-
zsimons’ testimony as meaning that the shell casing
found in the bathroom merely resembled the shell cas-
ings of the bullets purchased from Dick’s Sporting
Goods, not that it necessarily came from one of the
bullets that he had purchased. According to the defen-
dant, the prosecutor’s comment that the shell casing
‘‘matche[d]’’ the shell casings of the ammunition he
purchased from Dick’s Sporting Goods, coupled with
her subsequent comment that ‘‘[o]f course, [the defen-
dant] put a round in that chamber,’’ caused him harm
because it invited the jury to infer that he had cham-
bered one of the bullets that he purchased from Dick’s
Sporting Goods, and, thus, implicated the issue of
whether he had intended to shoot the victim.
In response, the state argues that the prosecutor’s
statements were fairly based on Fitzsimons’ testimony
that the shell casing was ‘‘consistent with’’ the ammuni-
tion the defendant purchased at Dick’s Sporting Goods.
In this regard, the state suggests that the word
‘‘matche[d]’’ may be interpreted as being synonymous
with the phrase ‘‘consistent with.’’
We agree with the state that the prosecutor’s com-
ments were not improper. According to the Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2003),
‘‘match,’’ when used as a verb, may be defined as ‘‘to
be the counterpart of . . . to compare favorably with
. . . to harmonize with,’’ while ‘‘consistent,’’ when
paired with the word ‘‘with,’’ may be defined as ‘‘marked
by agreement . . . compatible . . . .’’ Both the word
‘‘matched’’ and the phrase ‘‘consistent with’’ could con-
note either a precise identity or a general similarity.
Consequently, the prosecutor’s use of the word
‘‘matche[d]’’ did not conflict with Fitzsimons’ use of
the phrase ‘‘consistent with.’’ Furthermore, the other
evidence introduced at trial, including the timing of the
purchase and the caliber of the bullets, was sufficient
to support a finding that the bullet shot from the rifle
that struck the victim was one of the bullets that the
defendant purchased from Dick’s Sporting Goods.11 For
the foregoing reasons, we conclude that the prosecu-
tor’s comments were not improper.
B
The second alleged instance of prosecutorial impro-
priety concerns a comment made by the prosecutor
during her closing argument regarding statements the
defendant allegedly made to doctors at Charlotte Hun-
gerford Hospital after the shooting.
Before proceeding, we first set forth the following
additional, relevant facts. During trial, the state intro-
duced as an exhibit a hospital report created by Tieman,
a nurse, on the night of the shooting that provided, inter
alia, a list of the medications that the defendant had
been taking and a physical assessment of the defendant.
In addition, the report contained a section that detailed
the events that had transpired prior to the defendant’s
arrival at the hospital. The report provided, in relevant
part: ‘‘[Defendant] brought to [hospital] for evaluation
after admittedly shooting wife earlier today. . . .
[Defendant] states he has evidence that wife was having
an affair . . . . [Defendant states] ‘I am so upset, how
can you have a marriage when you can’t trust someone.’
[Defendant] states he had a loaded .22 caliber gun and
shot [the victim] in the leg. [Defendant] states ‘I could
have killed her, I am military trained, but I didn’t, I
don’t want her dead.’ . . . [Defendant] stated ‘I am so
sorry she got shot, I don’t want to hurt her anymore
. . . .’ ’’
In addition, the defendant introduced as an exhibit
a hospital report containing a psychiatric assessment of
the defendant after the shooting. The report contained a
clinical summary section that provided in relevant part:
‘‘[Defendant] . . . under arrest after shooting his wife
in the leg today. [Defendant] depressed since finding
out his wife is having an affair [with] a man he hired
to do his lawn.’’
During her closing argument, the prosecutor made
the following remarks: ‘‘[The defendant] intended to
[shoot the victim]. He told the doctors he intended to
do it. He went out and bought the ammunition the day
before. He hid the gun. He told [Morey] he was going
to shoot him and [the victim] if he caught them at it
again, and he did. Maybe he thought he was going to
shoot [Morey] first, but he shot [the victim] first.’’
(Emphasis added.) The defendant did not object to the
foregoing emphasized comment during trial.
1
The defendant asserts that the prosecutor’s statement
that the defendant ‘‘told the doctors he intended to
do it’’ was improper because it mischaracterized the
evidence. He contends that the hospital reports do not
indicate that he told the doctors or other medical pro-
viders that he intended to shoot the victim, but that he
had shot her without any admission as to his intent.
In response, the state argues that the jury could have
inferred from the defendant’s statements in the reports
that he intended to shoot the victim out of anger when
he discovered that she was having an affair.
We agree with the defendant that the prosecutor’s
comment was improper. Our review of the record does
not reveal any evidence, or any fair inferences to be
drawn from the evidence, that the defendant stated to
any medical provider that he intended to shoot the
victim. Tieman’s report and the psychiatric report in
evidence support a finding that the defendant admitted
to shooting the victim, but they do not support a finding
that he stated any intention to shoot her. Furthermore,
there was no testimony elicited at trial suggesting that
the defendant had told any medical provider that he
intended to shoot the victim. Consequently, we con-
clude that the prosecutor’s comment improperly sug-
gested facts that were not in the evidence. See, e.g.,
State v. Miller, 120 Conn. App. 133, 146, 990 A.2d 916(statement made during closing argument referring to
facts not in record constituted prosecutorial impropri-
ety), cert. denied, 297 Conn. 902, 994 A.2d 1288 (2010).
2
Although we determine that the prosecutor’s com-
ment was improper, we conclude that the improper
comment did not deprive the defendant of his right to
a fair trial. We consider the following Williams factors
to guide our analysis: (1) the extent to which the com-
ment was invited by the defendant’s conduct or argu-
ment; (2) the severity of the comment; (3) the frequency
of the comment; (4) the centrality of the comment to
the critical issues of the case; (5) the strength of the
curative measures adopted by the court; and (6) the
strength of the state’s case. See State v. Washington,
supra, 155 Conn. App. 604.
First, we examine the extent to which the comment
was invited by the defendant’s conduct or argument.
Here, our review of the record does not reveal any
indication that the defendant’s conduct or argument
prompted the state to make the comment.
Second, we examine the severity of the comment.
‘‘In determining whether prosecutorial impropriety is
severe, we consider whether defense counsel objected
to the improper remarks, requested curative instruc-
tions, or moved for a mistrial. . . . We also consider
whether the impropriety was blatantly egregious or
inexcusable.’’ (Citation omitted; internal quotation
marks omitted.) State v. Ciullo, 314 Conn. 28, 59, 100
A.3d 779 (2014). Here, the defendant’s failure to object
to the comment during trial ‘‘demonstrates that [the
defendant] presumably [did] not view the alleged impro-
priety as prejudicial enough to jeopardize seriously the
defendant’s right to a fair trial.’’ (Internal quotation
marks omitted.) State v. Jordan, 117 Conn. App. 160,
168, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d
648 (2009); see State v. Grant, 154 Conn. App. 293, 328,
112 A.3d 175 (2014) (lack of severity evident on basis
of defendant’s failure to object to impropriety), cert.
denied, 315 Conn. 928, 109 A.3d 923 (2015); see also
State v. Chase, 154 Conn. App. 337, 352, 107 A.3d 460(2014) (same), cert. denied, 315 Conn. 925, 109 A.3d
922 (2015).
Additionally, the prosecutor only made the comment
one time during her closing argument, mitigating its
severity. See State v. Chase, supra, 154 Conn. App.
351–52 (impropriety not severe when it occurred twice
during closing argument and was not recurring theme
throughout trial); State v. Crump, 145 Conn. App. 749,
762, 75 A.3d 758 (one instance of impropriety that defen-
dant did not object to was neither frequent nor severe),
cert. denied, 310 Conn. 947, 80 A.3d 906 (2013); State v.
Johnson, 107 Conn. App. 188, 203, 944 A.2d 416 (claimed
improprieties not severe because ‘‘they constituted a
very small portion of the state’s final argument’’), cert.
denied, 288 Conn. 905, 953 A.2d 650 (2008).
Our analysis is further guided by our Supreme Court’s
application of the severity prong in State v. Thompson,
266 Conn. 440, 479–80, 832 A.2d 626 (2003).12 See State
v. Miller, supra, 120 Conn. App. 147; see also State v.
Albino, 312 Conn. 763, 792 n.12, 97 A.3d 478 (2014).
Here, by once commenting that the defendant told the
doctors at the hospital that he intended to shoot the
victim, the prosecutor ‘‘did not engage in repeated
Thompson like patterns of bitter invective.’’ State v.
Miller, supra, 147.
Guided by the foregoing principles, we conclude that
the prosecutor’s comment was not severe. See State v.
John B., 102 Conn. App. 453, 466–68, 925 A.2d 1235(impropriety not severe despite being based on facts
not in evidence), cert. denied, 284 Conn. 906, 931 A.2d
267 (2007); cf. State v. Maguire, 310 Conn. 535, 561, 78
A.3d 828 (2013) (improprieties severe where prosecutor
questioned veracity of defense counsel and mischarac-
terized defendant’s defense theory); State v. A. M., 156
Conn. App. 138, 150–51, 111 A.3d 974 (2015) (impropri-
ety severe where prosecutor asked jury to examine
defendant’s credibility on the basis of defendant’s fail-
ure to testify at trial); State v. Felix R., 147 Conn. App.
206, 220–23, 228, 83 A.3d 619 (2013) (improprieties
severe where prosecutor appealed to emotions of jury
by commenting that complainant in sexual assault had
to be examined by doctors, face the defendant and a
jury at the defendant’s trial, and testify about personal
matters), cert. granted, 311 Conn. 915, 84 A.3d 883(2014); State v. Martinez, 143 Conn. App. 541, 580, 69
A.3d 975 (two improper statements ‘‘compounded’’
severity, particularly where prosecutor made brief clos-
ing argument and had limited amount of evidence to
highlight in closing argument), cert. granted, 310 Conn.
909, 76 A.3d 625 (2013); State v. McLaren, 127 Conn.
App. 70, 85, 15 A.3d 183 (2011) (improprieties severe
where prosecutor revealed to jury inadmissible evi-
dence that amounted to confession by defendant).
Third, we examine the frequency of the comment.
Here, the comment was infrequent, as the prosecutor
made the comment only once during her closing argu-
ment. See State v. Grant, supra, 154 Conn. App. 327–28
(improper comment made once); State v. Crump, supra,
145 Conn. App. 762 (same); State v. Miller, supra, 120
Conn. App. 148 (same); see State v. Aviles, 154 Conn.
App. 470, 487, 106 A.3d 309 (2014) (improper comment
made twice), cert. denied, 316 Conn. 903, 111 A.3d 471(2015); State v. Chase, supra, 154 Conn. App. 351(same); cf. State v. Thompson, 146 Conn. App. 249,
271–72, 76 A.3d 273 (improper comment made seven
times), cert. denied, 310 Conn. 956, 81 A.3d 1182 (2013);
State v. Jordan, supra, 117 Conn. App. 169 (impropriety
repeated fourteen times).
Fourth, we examine the centrality of the comment
to the issue of the defendant’s intent to shoot the victim,
which was a critical issue in the case because it is an
element of assault in the first degree pursuant to § 53a-
59 (a) (1) and (5). See State v. Jordan, supra, 117 Conn.
App. 169 (‘‘[i]t is a well established principle that the
elements of a crime are critical issues in a state’s case’’
[internal quotation marks omitted]). Here, the comment
was central to the critical issue of whether the defen-
dant intended to shoot the victim.
Fifth, we examine the curative measures adopted
by the court in response to the comment. Here, the
defendant did not object to the comment during the
prosecutor’s closing argument, and the court did not
provide any curative instructions in regard to the com-
ment. The court, however, provided the jury with the
following general instruction: ‘‘Certain things are not
evidence, and you may not consider them in deciding
what the facts are. These include: (1) arguments and
statements made by the lawyers. [The lawyers] are not
witnesses. What they have said in their closing argu-
ments is intended to help you interpret the evidence,
but it is not evidence.’’ ‘‘In the absence of a showing
that the jury failed or declined to follow the court’s
[general] instructions, we presume that it heeded them.
. . . There is no suggestion in the present case that the
jury did not follow the court’s general instructions.’’
(Citation omitted; internal quotation marks omitted.)
State v. Miller, supra, 120 Conn. App. 148–49; see also
State v. Albino, supra, 312 Conn. 792 (where no objec-
tion made and no curative instructions given, court’s
general instructions likely mitigated effect of some
improprieties).
Last, we review the strength of the state’s case. Here,
it is undisputed that the defendant shot the victim. The
defendant was distraught by the victim’s admitted infi-
delity and did not believe that she had ended her rela-
tionship with Morey. The defendant purchased
ammunition and two rifle magazines, which he filled
with the ammunition, attached one of the magazines to
his rifle, pursued the fleeing victim into their bathroom
and pointed the loaded rifle at her with his finger on the
trigger and the safety lock turned off.13 He threatened to
shoot her again after having initially shot her in the leg.
He did not voluntarily drop the rifle after shooting the
victim; instead, the victim had to forcibly disarm him.
After arriving at the hospital following the shooting, he
told the medical providers that he had loaded the rifle
and shot the victim, and that, with his military back-
ground, he could have killed her but did not want to.
He further stated that he ‘‘[didn’t] want to hurt [the
victim] anymore.’’ ‘‘Our Supreme Court has never stated
that the state’s evidence must have been overwhelming
in order to support a conclusion that prosecutorial
[impropriety] did not deprive the defendant of a fair
trial.’’ (Internal quotation marks omitted.) State v. Jor-
dan, supra, 117 Conn. App. 170. Absent the prosecutor’s
comment, there was ample evidence for the jury to
conclude that the defendant intended to shoot the vic-
tim and, therefore, the state’s case was strong.
On the basis of our assessment of the foregoing fac-
tors, we are not persuaded that ‘‘there is a reasonable
likelihood that the jury’s verdict would have been differ-
ent absent the . . . [prosecutor’s] impropriet[y].’’
(Internal quotation marks omitted.) State v. Ross, 151
Conn. App. 687, 706, 95 A.3d 1208, cert. denied, 314
Conn. 926, 101 A.3d 271 (2014). Therefore, we conclude
that the defendant was not deprived of his right to a
fair trial by the prosecutor’s improper comment.
3
Alternatively, the defendant asks us to invoke our
supervisory authority to ‘‘deter and restrain serious
prosecutorial misconduct of the kind that occurred
here.’’ (Internal quotation marks omitted.) We are not
persuaded.14
The following additional facts are relevant here. At
trial, the defendant attempted to introduce an unre-
dacted version of the psychiatric report that was in
evidence. The unredacted report contained statements
made by him suggesting that he did not intend to shoot
the victim. The state objected to the introduction of
the unredacted report, arguing that it contained self-
serving statements made by the defendant. After argu-
ment, the court sustained the state’s objection, conclud-
ing that any of the defendant’s statements contained in
the unredacted report suggesting that he did not intend
to shoot the victim were highly prejudicial and self-
serving. The court permitted the defendant to introduce
a redacted version of the psychiatric report into evi-
dence that excluded, inter alia, statements made by him
concerning his lack of intent to shoot the victim.
The defendant asserts that the prosecutor’s comment
concerning his alleged statement to the doctors, that he
intended to shoot the victim, was egregiously improper
because the unredacted report, which the prosecutor
had read, contained statements the defendant had made
indicating that he did not intend to shoot the victim.
According to the defendant, not only did the prosecutor
state a fact not in the evidence, but her comment
expressly contradicted statements he had made, as con-
tained in the unredacted report the jury did not have
an opportunity to view. The defendant claims that such
‘‘serious prosecutorial misconduct’’ warrants the exer-
cise of our supervisory authority to reverse his convic-
tion. We disagree.
‘‘[W]hen prosecutorial misconduct is not so egregious
as to implicate the defendant’s right to a fair trial, an
appellate court may invoke its supervisory authority
to reverse a criminal conviction when the prosecutor
deliberately engages in conduct that he or she knows,
or ought to know, is improper. . . . [W]e pay particular
attention to [whether] the prosecutor knew or should
have known that the conduct was improper and
[whether the impropriety] was part of a pattern of simi-
lar misconduct in other cases. We exercise our supervi-
sory authority in order to protect the rights of
defendants and to maintain standards among prosecu-
tors throughout the judicial system rather than to
redress the unfairness of a particular trial. We do so in
order to send a strong message that such conduct will
not be tolerated.’’ (Citations omitted; internal quotation
marks omitted.) State v. Santiago, 143 Conn. App. 26,
48–49, 66 A.3d 520 (2013).
This case does not warrant the rare exercise of our
supervisory authority. The prosecutor made the
improper comment only once during her closing argu-
ment, the comment was not in direct conflict with any
specific court ruling; see State v. David O., 104 Conn.
App. 722, 729, 937 A.2d 56 (2007), cert. denied, 285
Conn. 915, 943 A.2d 473 (2008); and the evidence in the
record does not suggest that she deliberately attempted
to mislead the jury and taint the trial. Furthermore,
there is no evidence in the record indicating that there
is a ‘‘pattern of similar misconduct in other cases.’’
(Internal quotation marks omitted.) State v. Santiago,
supra, 143 Conn. App. 48. Therefore, we conclude that
the use of our supervisory authority in this case is
unwarranted.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury also found the defendant subject to an enhanced sentence under
General Statutes § 53-202k.
2
The victim testified that she owned the second cell phone because the
defendant had installed a global positioning system device on her primary
cell phone to track her whereabouts.
3
The defendant testified that he did not know why the safety lock was
turned off.
4
The bullet went through the victim’s right leg and was lodged in her
left leg.
5
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instrument;
or . . . (5) with intent to cause physical injury to another person, he causes
such injury to such person or to a third person by means of the discharge
of a firearm.’’
6
The following exchange between the court and defense counsel occurred
during argument on the motion:
‘‘The Court: How is pain—how is pain relevant to the case?
‘‘[Defense Counsel]: Pain can make people—pain can make people act oth-
erwise.
‘‘The Court: Shouldn’t you have explored that ahead of time, that your
defense was going to be some type of overprescription, to the possibility
that he was in extreme pain, and wouldn’t that be something that would
be reasonable to foresee as defense counsel in this case?
‘‘[Defense Counsel]: Well, we did foresee it.
‘‘The Court: Didn’t you have access to the report that indicated by the
doctor who testified yesterday, he wasn’t in pain? So, it’s not even a matter
of me being concerned with the late disclosure. I don’t know the relevance
of the issue of pain.
‘‘You’re not dealing with extreme emotional distress, it’s not applicable
to this type of charge. You can’t now claim . . . not guilty by reason of
mental disease or defect. You know you can’t proceed that way. The state
had the right to be notified of that. The only avenue that I think that you’re
pursuing is some type of intoxication, either by drugs and/or alcohol that
negates specific intent.
‘‘[Defense Counsel]: Right, lack of intent.
‘‘The Court: Pain doesn’t—pain—general description of his pain by a
doctor who didn’t see him on any of the dates in question, how is it relevant?
‘‘[Defense Counsel]: Well, other than what I’ve already argued.
‘‘The Court: All right.
‘‘[Defense Counsel]: That—
‘‘The Court: The testimony is excluded.
‘‘The Clerk: The motion is denied?
‘‘The Court: Denied.’’
7
As a result of our conclusion that Levi’s proffered testimony was not
relevant, we need not reach the issue of whether the defendant was harmed
by its exclusion.
8
Furthermore, even if Levi’s proffered testimony was relevant to the
issue of intoxication, the record reveals that the defendant did not seek to
introduce Levi’s testimony as evidence that the defendant was intoxicated
at the time of the shooting. The defendant did not cite the issue of intoxica-
tion as a reason for proffering Levi’s testimony; instead, the defendant’s
proffered Levi’s testimony to rebut Tieman’s testimony and impeach her
credibility. See, e.g., State v. Adorno, 121 Conn. App. 534, 548 n.4, 996 A.2d
746 (‘‘[o]rdinarily, we will not consider a theory of relevance that was
not raised before the trial court’’), cert. denied, 297 Conn. 929, 998 A.2d
1196 (2010).
9
In addition, the evidence presented at trial supported a finding that the
defendant ingested Valium and smoked marijuana after the shooting
occurred.
10
According to Fitzsimons’ testimony, a bullet is comprised of a shell
casing and a projectile.
11
The defendant emphasizes that the magazine attached to the rifle was
fully loaded when found by the police after the shooting, suggesting that
none of the bullets the defendant loaded into the magazine entered the
chamber of the rifle. There was testimony elicited at trial, however, indicating
that it was possible to insert a bullet manually into the chamber of the rifle,
rather than through the magazine. Therefore, a fair inference may have been
drawn from the evidence that the defendant manually loaded a bullet that
he purchased from Dick’s Sporting Goods into the chamber of the rifle.
12
‘‘In Thompson, a murder prosecution, our Supreme Court reviewed and
found improper the prosecutor’s repeatedly calling the defendant a killer
. . . calling the testimony of the defendant’s two principal witnesses repre-
hensible, saying that they were lying and lacked both moral fortitude and
conscience, lived in a twisted world, were not stand-up enough guy[s] and
let misguided loyalty to a friend influence their testimony, and that by doing
so, they had reserved a place in hell for themselves . . . and they were
truthful in their earlier, recanted pretrial statements and that to believe their
trial testimony, jurors had to believe that the state’s witnesses had lied, and
suggesting to the jury that the witnesses would be arrested in connection
with the homicide. . . . Our Supreme Court in Thompson also concluded
that the prosecutor improperly importuned the jury to give the victim’s
family justice by convicting the defendant . . . and, finally, that he improp-
erly urged the jury to use impeachment evidence against a third defense
witness substantively. . . . Nonetheless, our Supreme Court held that this
misconduct was not, for the most part, severe.’’ (Internal quotation marks
omitted.) State v. Miller, supra, 120 Conn. App. 147 n.12.
13
The defendant testified at trial: ‘‘[Y]ou don’t put your finger [on the
trigger] or else you’re going to shoot someone.’’
14
The defendant appears to claim that we should invoke our supervisory
authority to reverse his conviction on the basis of all of the prosecutor’s
comments that he is challenging on appeal. On the basis of our conclusion,
however, that the prosecutor’s comments regarding the shell casing found
in the bathroom were not improper, we solely address whether we should
invoke our supervisory authority to address the prosecutor’s improper com-
ment regarding the defendant’s alleged statement to the doctors at the
hospital that he intended to shoot the victim.