State v. Andrews

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     STATE OF CONNECTICUT v. LAWRENCE
                R. ANDREWS
                 (SC 18913)
      Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
                     Espinosa and Robinson, Js.
      Argued February 18—officially released August 26, 2014

  James B. Streeto, assistant public defender, for the
appellant (defendant).
   Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Terence D. Mariani, senior assistant state’s
attorney, for the appellee (state).
                         Opinion

   ZARELLA, J. The defendant, Lawrence R. Andrews,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of felony murder in violation
of General Statutes § 53a-54c.1 The defendant claims
that (1) the trial court improperly precluded the testi-
mony of a key defense witness, (2) he was deprived of
his due process right to a fair trial by a pattern of
prosecutorial impropriety, (3) his conviction was funda-
mentally unfair because the state relied on a different
theory in his case than in the case against a coassailant,
(4) the evidence was insufficient to support his convic-
tion for felony murder, and (5) the trial court improperly
denied his motion to suppress his oral and written state-
ments to the police confessing his role in the murder.
We affirm the judgment of the trial court.
   The jury reasonably could have found the following
facts. On March 21, 1999, a tenant at 17 Burton Street
in the city of Waterbury went to the basement to retrieve
his bicycle and discovered the partially clothed body
of the victim, Michelle McMaster, lying on the floor. A
police investigation subsequently determined that the
cause of her death was asphyxia by manual strangula-
tion and that the evidence also was consistent with a
sexual assault.
   For nearly one decade, the police were unable to
solve the crime. In 2008 and 2009, however, a purported
eyewitness, Donna Russell, was interviewed on several
occasions by detectives from the Waterbury Police
Department and gave three increasingly detailed writ-
ten statements regarding what she had seen. In her
statements, Russell disclosed that, on the evening of
March 20, 1999, she went to the basement of 17 Burton
Street, a local drug hangout, for the purpose of using
heroin. Upon her arrival, four other people already were
there: the defendant, Barry Smith, a man she did not
know but who later was identified from a photographic
array as Orenthain Daniel, and the victim. As Russell
proceeded to inject herself with heroin, she heard the
defendant and the victim arguing about money or drugs.
The argument quickly escalated, and a struggle ensued,
during which the victim was knocked down. Afraid
that something ‘‘horrible’’ was about to happen, Russell
decided to flee. The last thing she saw upon escaping
from the basement was the defendant bending over the
victim and choking her, Smith holding down her arms,
and Daniel pulling down her pants. She also heard the
victim gasping for air and pleading for Russell’s help,
and the men saying they were going to have sex with
her one way or another.
  The defendant was arrested on March 6, 2009, and
ultimately charged with murder and felony murder
based on the predicate felony of attempted robbery.2
On May 2, 2011, the defendant entered a plea of not
guilty and elected a jury trial. At trial, the court denied
the defendant’s motions for judgment of acquittal after
the state and the defense, respectively, rested their
cases. On June 14, 2011, the jury returned a verdict of
not guilty as to the count of murder and guilty as to
the count of felony murder, and the court subsequently
sentenced the defendant to a term of thirty-five years
incarceration. This appeal followed.
                             I
   The defendant first claims that the trial court’s deci-
sion to preclude testimony from a key defense witness
violated the defendant’s constitutional right to present
a defense under the sixth amendment to the United
States constitution3 because the witness would have
established that the defendant had sufficient money to
buy drugs and thus lacked a motive to commit the
attempted robbery, the predicate offense for the felony
murder charge. The defendant further claims that the
testimony of the witness ‘‘would have provided vital
corroboration for his version of events, severely under-
cut the state’s theory, and bolstered the defendant’s
defense and his own testimony.’’ The state responds
that the trial court properly excluded the testimony as
irrelevant because it did not try the case on the theory
that the defendant was motivated to rob the victim due
to a lack of money. Rather, it tried the case on the
theory that the defendant wanted to have some or all
of the victim’s crack cocaine to satisfy his immediate
craving for drugs. The state also argues that the testi-
mony was irrelevant because it would not have estab-
lished that the defendant had any of his purported
money with him on the night of the murder. The state
finally argues that, even if the trial court committed
evidentiary error, the error was not harmful. We agree
with the state that the trial court’s ruling to preclude
the testimony was not improper.4
   The following additional facts are relevant to our
resolution of this claim. Upon completion of the state’s
case-in-chief, during which Russell testified that the
defendant had money whenever she was around him,
defense counsel informed the court that he intended
to call the defendant and his sister, Tricia Andrews
(Andrews), as the only two defense witnesses. The
senior assistant state’s attorney (prosecutor) responded
with an oral motion in limine seeking an offer of proof
as to Andrews’ proposed testimony. In reply to the
motion, defense counsel represented that Andrews
would testify that the defendant had no motive to com-
mit the attempted robbery because he had received a
large sum of money the previous year from his mother’s
estate. The prosecutor, however, objected on relevancy
grounds, arguing that it was ‘‘not the state’s position
that [the] crime was motivated by a lack of access
to funds. It’s the state’s position that this crime was
motivated by [the defendant’s] intense and long-stand-
ing desires to get crack cocaine any way he could when
he wanted it, and that the opportunity presented itself
in the basement [of] 17 Burton Street back in March of
1999.’’ The prosecutor also argued that the fact that
the defendant’s mother had died fairly recently was
irrelevant. Defense counsel replied that Andrews’ testi-
mony regarding his mother’s death was not intended
to elicit sympathy from the jurors but to show that
the defendant had the financial resources necessary to
purchase drugs on a regular basis and he thus had no
motive to rob the victim.
  The trial court granted the state’s motion in limine
on the ground that Andrews’ testimony was not relevant
and that the defendant, who defense counsel had repre-
sented would testify in his own defense, could provide
the same information. Consequently, the defendant was
the sole defense witness.
   The defendant subsequently testified that, following
his mother’s death in 1998, he received more than
$100,000 in cash and ‘‘annuities’’ that ‘‘should have
lasted the rest of [his] life.’’ He further testified that he
had gained initial access to this money in the summer
of 1998 and had used it to purchase ‘‘[j]ewelry, clothes,
crack [cocaine], mostly drugs, and clothes—mostly
drugs and clothes.’’
   Defense counsel later referred in passing to the defen-
dant’s inheritance during closing argument. After the
prosecutor initially argued that the case was about a
woman who had lost her life at the hands of the defen-
dant, ‘‘who wanted to fuel his lifelong addiction to crack
cocaine,’’ defense counsel responded that the defendant
had not been present ‘‘when [the victim] was killed,’’
that his signed statement confessing to his presence
was involuntary because he did not understand what
he was signing, and that he had no motivation or ‘‘need
to go after anybody for . . . crack [cocaine]. In 1999,
[the defendant] had plenty of money’’ to purchase drugs.
The prosecutor reiterated during rebuttal that the defen-
dant had been motivated to commit the attempted rob-
bery by his immediate need to get more crack due to
his craving and desire for the drug. The prosecutor
described the defendant as a person consumed by a
‘‘drug fueled frenzy in that basement, seeing the oppor-
tunity to get himself that nice, big . . . rock of crack
cocaine.’’
   We begin our analysis with the governing legal princi-
ples. It is well established that ‘‘[t]he federal constitu-
tion require[s] that criminal defendants be afforded a
meaningful opportunity to present a complete defense.
. . . The sixth amendment . . . [guarantees] the right
to offer the testimony of witnesses, and to compel their
attendance, if necessary, [and] is in plain terms the right
to present a defense, the right to present the defendant’s
version of the facts as well as the prosecution’s to the
jury so that it may decide where the truth lies. . . .
When defense evidence is excluded, such exclusion
may give rise to a claim of denial of the right to present
a defense. . . . A defendant is, however, bound by the
rules of evidence in presenting a defense. . . .
Although exclusionary rules of evidence cannot be
applied mechanistically to deprive a defendant of his
rights, the constitution does not require that a defendant
be permitted to present every piece of evidence he
wishes. . . . If the proffered evidence is not relevant,
the defendant’s right to confrontation is not affected,
and the evidence was properly excluded.’’ (Internal quo-
tation marks omitted.) State v. Hedge,
297 Conn. 621,
634
,
1 A.3d 1051
(2010)
   ‘‘[R]elevant evidence is evidence that has a logical
tendency to aid the trier in the determination of an
issue. . . . Evidence is relevant if it tends to make the
existence or nonexistence of any other fact more proba-
ble or less probable than it would be without such
evidence. . . . To be relevant, the evidence need not
exclude all other possibilities; it is sufficient if it tends
to support the conclusion [for which it is offered], even
to a slight degree. . . . All that is required is that the
evidence tend to support a relevant fact even to as
light degree, so long as it is not prejudicial or merely
cumulative.’’ (Internal quotation marks omitted.) Chief
Information Officer v. Computers Plus Center, Inc.,
310 Conn. 60
, 102,
74 A.3d 1242
(2013).
   ‘‘We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law . . .
for an abuse of discretion. . . . We will make every
reasonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse
of discretion.’’ (Internal quotation marks omitted.) State
v. Coccomo,
302 Conn. 664, 707
,
31 A.3d 1012
(2011).
‘‘In determining whether there has been an abuse of
discretion, the ultimate issue is whether the court could
reasonably conclude as it did.’’ (Internal quotation
marks omitted.) State v. Arthur H.,
288 Conn. 582, 595
,
953 A.2d 630
(2008).
   Turning to the defendant’s claim, we have stated that
‘‘[w]hether a trial court’s . . . restriction of a defen-
dant’s or defense [witness’] testimony in a criminal trial
deprives a defendant of his [constitutional] right to pre-
sent a defense is a question that must be resolved on
a case by case basis. . . . The primary consideration
in determining whether a trial court’s ruling violated a
defendant’s right to present a defense is the centrality
of the excluded evidence to the claim or claims raised
by the defendant at trial.’’ (Citation omitted; internal
quotation marks omitted.) State v. Sandoval,
263 Conn.
524, 546
,
821 A.2d 247
(2003); accord State v. Saunders,
267 Conn. 363, 385
,
838 A.2d 186
, cert. denied,
541 U.S.
1036
,
124 S. Ct. 2113
,
158 L. Ed. 2d 722
(2004).
 In the present case, the defendant’s theory of defense
was that he was not present at the crime scene.
Although defense counsel briefly mentioned during his
summation that the defendant had no motivation to
participate in the attempted robbery because he had
plenty of money with which to purchase drugs, counsel
repeatedly argued that the defendant was not present
in the basement when the murder was committed. In
making this point, he first challenged Russell’s recollec-
tion that the defendant was in the basement by sug-
gesting that her memory was distorted because she was
under the influence of heroin. He next challenged the
validity of the defendant’s signed confession to the
police admitting his presence in the basement on the
ground that he did not understand what he was signing.
He then concluded: ‘‘And so there is a reasonable doubt,
even more so, even heavier, about whether [the defen-
dant] was present at 17 Burton Street [in] March, 1999.
Yeah, there is information. Yeah, there is testimony.
Yes, there is some evidence, but there is no proof . . .
beyond a reasonable doubt that [the defendant] tried
to rob [the victim] with anyone, or that [the defendant]
killed [the victim], either acting as a principal or being
aided by someone else. You just don’t have that much
evidence. And you can’t say he probably did it.’’ Thus,
Andrews’ testimony that the defendant had received an
inheritance from his mother was at best a tangential
issue and entirely unrelated to the defendant’s theory
that he was not present in the basement at 17 Burton
Street when the victim was murdered. Accordingly, the
trial court’s ruling to preclude Andrews from testifying
did not rise to the level of a constitutional violation.
   We nevertheless consider whether the trial court’s
decision to preclude Andrews’ testimony was improper
on purely evidentiary grounds. See State v.
Saunders,
supra,
267 Conn. 386
(even though trial court’s preclu-
sion of testimony was not violation of constitutional
magnitude, defendant was ‘‘entitled to reversal of his
conviction if he [could] establish that the exclusion was
both improper and harmful’’). In this respect, we note
that Russell initially testified in the state’s case-in-chief
that the defendant had money whenever she was around
him. The defendant later testified that, the year before
the murder, he had received $100,000 in cash and annui-
ties from his mother’s estate, which ‘‘should have lasted
the rest of [his] life,’’ and that he had used the money
to buy drugs, clothing and jewelry. Defense counsel
gave no indication in his offer of proof that Andrews’
testimony would have differed in any essential respect
from that of the defendant. In fact, counsel’s offer of
proof suggested that Andrews’ testimony would have
been less detailed because there was no hint in the
proffer that Andrews would testify as to how much
money the defendant had received, the form in which
he had received it, and how he had been spending the
money prior to the victim’s murder. Accordingly, we
conclude that Andrews’ testimony would have been
merely cumulative and would not have affected the
jury’s determination regarding the defendant’s motiva-
tion and guilt.
   The defendant nevertheless argues that Andrews
would have been a more ‘‘neutral’’ witness than the
defendant and that the jury would have found her testi-
mony regarding the inheritance more credible. We agree
that Andrews would have corroborated the defendant’s
testimony on the issue of his inheritance and might
even have been more credible. The testimony regarding
the inheritance, however, was not disputed by the par-
ties, and, as previously discussed, was not a central
issue in the case, because it was completely unrelated
to his defense that he was not present at the crime
scene. Accordingly, the trial court did not abuse its
discretion in precluding Andrews’ testimony.
                             II
   The defendant next claims that he was deprived of
his due process right to a fair trial due to a pattern of
prosecutorial impropriety. He specifically claims that
the prosecutor engaged in vitriolic and improper ques-
tioning during cross-examination and that he viciously
attacked the defendant, argued facts not in evidence,
appealed to the jurors’ emotions, and denigrated the
defendant’s credibility during closing argument. The
defendant concedes that he did not preserve this claim
at trial and now seeks review under State v. Golding,
213 Conn. 233
, 239–40,
567 A.2d 823
(1989). The state
responds that the defendant has failed to show the
existence of any prosecutorial impropriety and that, to
the extent any improprieties occurred, the defendant
has failed to establish that they resulted in a deprivation
of his due process rights. We agree with the state that
there was no prosecutorial impropriety.
   ‘‘[T]he touchstone of due process analysis in cases
of alleged prosecutorial [impropriety] is the fairness of
the trial, and not the culpability of the prosecutor. . . .
The issue is whether the prosecutor’s conduct so
infected the trial with unfairness as to make the
resulting conviction a denial of due process. . . . In
determining whether the defendant was denied a fair
trial [by virtue of prosecutorial impropriety] we must
view the prosecutor’s comments in the context of the
entire trial.’’ (Internal quotation marks omitted.) State
v. Stevenson,
269 Conn. 563, 571
,
849 A.2d 626
(2004).
  ‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [an impro-
priety] occurred in the first instance; and (2) whether
that [impropriety] deprived [the] defendant of his due
process right to a fair trial. Put differently, [an impropri-
ety is an impropriety], regardless of its ultimate effect
on the fairness of the trial; whether that [impropriety]
caused or contributed to a due process violation is a
separate and distinct question . . . .’’ (Internal quota-
tion marks omitted.)
Id., 572
.
   ‘‘[I]n cases involving incidents of prosecutorial
[impropriety] that were not objected to at trial . . . it
is unnecessary for the defendant to seek to prevail
under the specific requirements of [Golding], and, simi-
larly, it is unnecessary for a reviewing court to apply
the four-pronged Golding test. The reason for this is
that the touchstone for appellate review of claims of
prosecutorial [impropriety] is a determination of
whether the defendant was deprived of his right to
a fair trial, and this determination must involve the
application of the factors set [forth] by this court in
State v. Williams,
204 Conn. 523, 540
,
529 A.2d 653
(1987). As we stated in that case: In determining
whether prosecutorial [impropriety] was so serious as
to amount to a denial of due process, this court, in
conformity with courts in other jurisdictions, has
focused on several factors. Among them are the extent
to which the [impropriety] was invited by defense con-
duct or argument . . . the severity of the [impropriety]
. . . the frequency of the [impropriety] . . . the cen-
trality of the [impropriety] to the critical issues in the
case . . . the strength of the curative measures
adopted . . . and the strength of the state’s case. . . .
   ‘‘Regardless of whether the defendant has objected
to an . . . [impropriety], a reviewing court must apply
the Williams factors to the entire trial, because there
is no way to determine whether the defendant was
deprived of his right to a fair trial unless the [impropri-
ety] is viewed in light of the entire trial. The application
of the Williams factors, therefore, is identical to the
third and fourth prongs of Golding, namely, whether
the constitutional violation exists, and whether it was
harmful. . . . [Thus], following a determination that
prosecutorial [impropriety] has occurred, regardless of
whether it was objected to, an appellate court must
apply the Williams factors to the entire trial.
   ‘‘This does not mean, however, that the absence of
an objection at trial does not play a significant role in
the application of the Williams factors. To the contrary,
the determination of whether a new trial or proceeding
is warranted depends, in part, on whether defense coun-
sel has made a timely objection to any . . . [prosecu-
torial impropriety]. When defense counsel does not
object, request a curative instruction or move for a
mistrial, he presumably does not view the alleged
impropriety as prejudicial enough to [seriously] jeopar-
dize . . . the defendant’s right to a fair trial. . . .
Moreover, ordinarily, when a defendant who raises an
objection to the allegedly improper remarks of a prose-
cutor elects to pursue one remedy at trial instead of
another, he will not be permitted to claim on appeal
that the remedy he pursued was insufficient. . . . In
other words, the fact that defense counsel did not object
to one or more . . . [improprieties] must be consid-
ered in determining whether and to what extent the
[impropriety] contributed to depriving the defendant of
a fair trial and whether, therefore, reversal is warranted.
   ‘‘We emphasize the responsibility of defense counsel,
at the very least, to object to perceived prosecutorial
improprieties as they occur at trial, and we continue
to adhere to the well established maxim that defense
counsel’s failure to object to the prosecutor’s argument
when it was made suggests that defense counsel did
not believe that it was unfair in light of the record of
the case at the time. . . . Moreover . . . defense
counsel may elect not to object to arguments that he
or she deems marginally objectionable for tactical rea-
sons, namely, because he or she does not want to draw
the jury’s attention to it or because he or she wants to
later refute that argument. . . . Accordingly, we
emphasize that counsel’s failure to object at trial, while
not by itself fatal to a defendant’s claim, frequently
will indicate on appellate review that the challenged
comments do not rise to the magnitude of constitutional
error . . . . Put differently . . . prosecutorial [impro-
priety] claims [are] not intended to provide an avenue
for the tactical sandbagging of our trial courts but,
rather, to address gross prosecutorial improprieties that
. . . have deprived a criminal defendant of his right
to a fair trial.’’ (Citations omitted; emphasis omitted;
footnotes omitted; internal quotation marks omitted.)
State v.
Stevenson, supra,
269 Conn. 572–76.
  With these principles in mind, we first consider
whether the prosecutor in the present case committed
the alleged improprieties. If we determine that he did,
we will then conduct a separate analysis to determine
whether the improprieties deprived the defendant of
his right to a fair trial.
                             A
   We begin with the alleged improprieties that occurred
during the prosecutor’s cross-examination of the defen-
dant. The defendant claims that the prosecutor engaged
in aggressive, derogatory and sarcastic questioning
when he (1) asked the defendant if he had been arrested
‘‘[p]retty much everywhere you’ve been,’’ (2) queried,
with respect to the detectives who questioned him at
the police station, ‘‘[d]id you think, all of a sudden, boy,
these are a good bunch of guys, I think I’ll, you know,
hang out with them, do what they want me to do,’’ (3)
stated, concerning the defendant’s medication, ‘‘[i]t’s
not like—correct me if I’m wrong—you’re not out of
your mind crazy, you don’t know what’s going on, right,’’
(4) asked, regarding the defendant’s need for drugs, ‘‘if
you don’t have the drugs, are the demons screaming at
you,’’ (5) described the defendant’s portrayal of Russell
as a ‘‘scorn[ed]’’ woman, (6) sarcastically asked, ‘‘did
you get the sense from [Russell’s] testifying that she
was trying to seduce you at that point when she was
up there crying for hours in a row, refusing to look
over at you,’’ and (7) denigrated and mocked the defen-
dant when he said, ‘‘[c]ome on’’ and ‘‘did it pop a light
bulb in your head . . . ?’’ The defendant argues that
the foregoing comments were inflammatory, hostile and
designed to arouse the emotions, passions, and preju-
dices of the jurors, thus leading them to conclude that
the defendant was telling a ridiculous story, a theme
later stressed by the prosecutor during his closing
argument.
   The state replies that the defendant has merely
lumped together a number of unpreserved evidentiary
challenges and labeled them as prosecutorial improprie-
ties for the purpose of obtaining appellate review that
otherwise would be unavailable. The state also argues
that, when considered in context, none of the prosecu-
tor’s questions and comments during his cross-examina-
tion of the defendant was improper. We agree with
the state.
   It is well established that a prosecutor may not appeal
to the emotions, passions and prejudices of the jurors
by denigrating a witness through the frequent and gratu-
itous use of sarcasm. See, e.g., State v. Wilson,
308
Conn. 412
, 436,
64 A.3d 91
(2013); see also State v.
Salamon,
287 Conn. 509, 564
,
949 A.2d 1092
(2008)
(‘‘gratuitous use of sarcasm and repeated questioning of
[the witness] as to matters that he already had explored
thoroughly with [the witness]’’ improperly conveyed
prosecutor’s own belief that witness was not credible);
State v. Rizzo,
266 Conn. 171, 263
,
833 A.2d 363
(2003)
(use of needless sarcasm during cross-examination of
defense witness ‘‘[may call on] the jurors’ feelings of
disdain, and [may send] them the message that the use
of sarcasm, rather than reasoned and moral judgment,
as a method of argument [is] permissible and appro-
priate for them to use’’). We also have stated, however,
that defense counsel’s failure to object to allegedly sar-
castic and denigrating comments and questions by the
prosecutor during cross-examination, as in the present
case, suggests that counsel did not believe the alleged
improprieties were unfair in light of the record at that
time. E.g., State v. Medrano,
308 Conn. 604
, 621,
65
A.3d 503
(2013). Accordingly, we consider each alleged
impropriety in the context in which it occurred, with
the challenged language italicized. In performing this
task, we are constrained by our inability to assess the
tone and body language of the prosecutor and the defen-
dant, and the limitations necessarily imposed by our
reliance on the cold, printed record.
   The first alleged impropriety occurred during an
exchange between the prosecutor and the defendant
concerning the defendant’s prior arrests.5 After the
prosecutor elicited testimony from the defendant that
he had been arrested dozens of times in Connecticut,
Georgia and New Hampshire, the prosecutor summa-
rized his testimony by asking: ‘‘Pretty much everywhere
you’ve been, right?’’ (Emphasis added.) The trial court
overruled defense counsel’s objection to the question
as a mischaracterization of the evidence because ‘‘the
question was whether he’s been arrested everywhere
he’s been. He can answer that.’’ The defendant there-
after responded: ‘‘No. I’ve been a whole lot of places
that I ain’t been arrested.’’
  We conclude that the prosecutor’s question was not
improper because it was intended to summarize the
defendant’s preceding acknowledgment during his tes-
timony that he had been arrested ‘‘dozens and dozens’’
of times in Connecticut and two other states, thus sug-
gesting that he had been arrested in many different
places. The defendant also was given an opportunity
to respond and, in so doing, denied that he had been
arrested ‘‘[p]retty much everywhere . . . .’’ Accord-
ingly, although the question, viewed in isolation, might
appear to be sarcastic, it represented a reasonable infer-
ence to be drawn from the defendant’s prior testimony
regarding the number and location of his many prior
arrests.
   The second alleged impropriety occurred during an
exchange between the prosecutor and the defendant
concerning the defendant’s attitude toward the detec-
tives who questioned him on the second day of his
interrogation, during which he signed a written state-
ment in which he confessed to his involvement in the
crime but that he repudiated at trial on the ground that
he had not understood its contents.6 After the defendant
testified that the detectives had ‘‘[p]unched [him] up,’’
‘‘[got him] drunk,’’ and then turned friendly and ‘‘buddy,
buddy,’’ thus implying they were trying to cajole him
into signing the statement after physically beating him,
the prosecutor asked: ‘‘Did you think, all of a sudden,
boy, these are a good bunch of guys, I think I’ll, you
know, hang out with them, do what they want me to
do?’’ (Emphasis added.) The defendant responded that
he had signed the statement so that the detectives would
leave him alone.
  We conclude that the prosecutor’s question was not
improper because its clear and obvious purpose was
to clarify the defendant’s reasons for signing the state-
ment. To the extent the defendant also suggests that the
question was sarcastic because of its informal language,
the language was consistent with the language that the
defendant used in his prior testimony when stating that
the detectives had ‘‘[p]unched me up, then [got] me
drunk and [made] friends with me . . . everybody was
buddy, buddy.’’
   The third alleged impropriety occurred during an
exchange between the prosecutor and the defendant
regarding the defendant’s state of mind and his ability
to understand what he was reading when the detectives
presented him with the written statement, which was
typed by one of the detectives while the defendant was
telling them what had happened on the night of March
20, 1999.7 The prosecutor asked the defendant if his
need for prescription medication had affected his ability
to understand what was going on during the interroga-
tion, to which the defendant responded that he did
understand. The prosecutor then asked: ‘‘It’s not like—
correct me if I’m wrong—you’re not out of your mind
crazy, you don’t know what’s going on, right’’; (empha-
sis added); to which the defendant responded, ‘‘[n]o.’’
   We conclude that the prosecutor’s reference to the
fact that the defendant was not ‘‘out of [his] mind crazy’’
when not on his medication was not improper. The
prosecutor’s language was colloquial and perhaps need-
lessly colorful but was not inappropriate because it
did not describe the defendant as crazy but, rather,
emphasized the defendant’s prior testimony that he was
in full possession of his faculties and thus understood
what he was doing when he signed the written state-
ment.
   The fourth alleged impropriety occurred during an
exchange between the prosecutor and the defendant
regarding the defendant’s reasons for using drugs and
the effect of his addiction on his family relationships.8
After the defendant testified that he started using drugs
to ‘‘get rid of’’ and ‘‘quiet . . . down’’ the demons in his
head, which were caused by violent childhood beatings,
the prosecutor asked: ‘‘So, if you don’t have the drugs,
are the demons screaming at you’’; (emphasis added);
to which the defendant responded that the demons
caused him to avoid people as much as possible, even
when he was using drugs, because being around people
frightened him.
  We conclude that the prosecutor’s question was not
improper because it was intended to elicit information
regarding the cause of the defendant’s addiction and
the effect of drugs on his state of mind. Insofar as
the prosecutor referred to demons screaming at the
defendant when he was not on drugs, his use of this
language was consistent with the defendant’s own refer-
ence to demons in his head when he was describing
the cause of his addiction.
   The fifth and sixth alleged improprieties occurred
during an exchange between the prosecutor and the
defendant regarding the defendant’s attitude toward
Russell and her testimony at trial.9 In probing whether
the defendant’s relationship with Russell before the
crime had been contentious, the defendant testified that
he did not think she had a grudge against him but that
he had rebuffed her attempts to ‘‘seduce’’ him with
drugs when he had met her a couple of times on the
street because he never wanted anything to do with
her. Thereafter, when the prosecutor asked whether
Russell would have falsely accused him of being present
at the crime scene, the defendant responded that he
did not know because ‘‘[a] woman scorn[ed] could do
anything.’’ The prosecutor then asked: ‘‘Now she’s
scorn[ed]?’’ (Emphasis added.) The defendant repeated
that he had rejected Russell’s attempts to seduce him
with heroin because he did not use heroin, to which
the prosecutor responded: ‘‘And did you get the sense
from her testifying that she was trying to seduce you
at that point when she was up there crying for hours in
a row, refusing to look over at you?’’ (Emphasis added.)
   We conclude that the prosecutor’s first question
regarding the defendant’s description of Russell as a
‘‘scorn[ed]’’ woman was not improper. The question
repeated the defendant’s own description of Russell as
‘‘[a] woman scorn[ed]’’ and was intended to emphasize
the incongruity of his initial testimony that he believed
Russell bore no grudge against him and his later sugges-
tion that she might have falsely accused him because
he had rejected her attempts to seduce him with drugs.
   We also conclude that the prosecutor’s second ques-
tion was not improper. There is no doubt that the ques-
tion was confusing. The fact that a question is confusing,
however, does not mean it is improper, even if the
prosecutor took the concept of seduction out of context
and used it inexplicably to describe the effect of Rus-
sell’s tearful testimony on the defendant at trial.
   The seventh and eighth alleged improprieties
occurred during an exchange between the prosecutor
and the defendant regarding the defendant’s purported
lack of knowledge as to the contents of the written
statement he signed on the second day of his interroga-
tion.10 In discussing the defendant’s numerous past
arrests and interactions with the police, the prosecutor
repeatedly attacked the defendant’s vociferous denials
that he never had been questioned and asked to sign a
written statement following any of his other arrests.
The prosecutor finally stated: ‘‘Come on. You said that
[one of the police officers], the good guy, had brought
you down and questioned you about this case in the
past’’; (emphasis added); in response to which the
defendant repeated that he had not been asked to sign
anything in the past. The prosecutor nevertheless con-
tinued to press the defendant on this issue and finally
inquired about whether the defendant had been sur-
prised at the length of the written statement and if he
had wondered why it was so long when he initially
saw it. The defendant replied that he had signed the
statement without reading it because he wanted to go
back to his jail cell. The prosecutor, however, continued
to push the defendant for a more specific answer by
asking: ‘‘Did it cause you any concern or did it pop a
light bulb in your head, boy, there’s a lot of typed
up words on here; I wonder why there’s so many?’’
(Emphasis added.) The defendant responded that there
were a lot of typed words in the newspaper and that
they also meant nothing.
  We conclude that the prosecutor’s use of the term,
‘‘[c]ome on,’’ and his reference to a light bulb ‘‘pop-
[ping]’’ in the defendant’s head were not improper. The
prosecutor used the term ‘‘[c]ome on’’ in an effort to
encourage the defendant to testify truthfully as to his
prior experience in giving, or understanding the pur-
pose of, written statements to the police, immediately
after the defendant testified: ‘‘I’ve never had to sign a
statement, ever, never, never, never. I [have] never been
questioned by detectives, never, ever, ever, never. Is
that enough nevers for you? Never. . . . I can tell you
never—I [have] never been arrested. I [have] never been
questioned. [I] never went through this. . . . I never
went through this. I never did this before.’’ Given the
defendant’s repeated and emphatic denials, the prose-
cutor’s attempt to ensure that the defendant was being
truthful by saying, ‘‘[c]ome on,’’ was not inappropriate.
  Similarly, asking the defendant whether the length
of the written statement ‘‘pop[ped] a light bulb’’ in his
head for the purpose of pointing out its potential signifi-
cance was an appropriate rhetorical device that is com-
monly used in conversation to describe a sudden under-
standing or thought. Accordingly, we conclude that the
foregoing questions were not improper.
                            B
   We next address the improprieties that allegedly
occurred during the prosecutor’s closing argument. The
defendant claims that the prosecutor improperly (1)
denigrated the defendant and the manner in which he
was arguing his case, (2) made several blatant appeals
to the jurors’ emotions, (3) argued facts not in evidence,
(4) expressed his belief to the jury that the defendant
was guilty, and (5) made two misleading, burden shift-
ing arguments. The state responds that, when under-
stood in their proper context, none of the comments
to which the defendant refers was improper. We agree
with the state.
   ‘‘As we previously have recognized, prosecutorial
[impropriety] of a constitutional magnitude can occur
in the course of closing arguments. . . . When making
closing arguments to the jury, [however] [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . . Moreover, [i]t does not follow . . . that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal devices is simply fair argument. . . .
  ‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek 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. . . .
[W]hile [the prosecutor] may strike hard blows, he is
not at liberty to strike foul ones. It is as much his duty
to refrain from improper methods calculated to produce
a wrongful conviction as it is to use every legitimate
means to bring about a just one. . . .
  ‘‘Furthermore, the prosecutor may not express his
own opinion, directly or indirectly, as to the credibility
of the witnesses. . . . Nor should a prosecutor express
his opinion, directly or indirectly, as to the guilt of the
defendant. . . . Such expressions of personal opinion
are a form of unsworn and unchecked testimony, and
are particularly difficult for the jury to ignore because
of the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions.’’ (Citations omitted; internal quotation marks
omitted.) State v. Colon,
272 Conn. 106
, 237–38,
864
A.2d 666
(2004), cert. denied,
546 U.S. 848
,
126 S. Ct.
102
,
163 L. Ed. 2d 116
(2005).
                            1
   The defendant first claims that the prosecutor
improperly denigrated him personally and his theory
of the case by (1) calling him a ‘‘hardened criminal,’’
(2) stating that his testimony disavowing any knowledge
of what was in the written statement ‘‘just doesn’t make
any sense,’’ (3) arguing that the defense would have
challenged a video-recorded statement from the defen-
dant, which the defense suggested would have been
preferable, to the same extent it challenged the validity
of the defendant’s written statement, (4) accusing the
defense of focusing on insignificant evidence, and
(5) engaging in unnecessary sarcasm by referring to the
defendant’s testimony that he had been given alcoholic
beverages during his interrogation as ‘‘happy hour at
the police department.’’
   We begin with the prosecutor’s characterization of
the defendant as a ‘‘hardened criminal’’ and his descrip-
tion of the defendant’s testimony that he did not know
what was in the written statement as not making any
sense.11 The ‘‘hardened criminal’’ comment was fol-
lowed by the prosecutor’s observation that the defen-
dant had ‘‘been in and out of . . . jail his entire life’’
and that he did not condemn the defendant as a ‘‘bad
man’’ for his extensive criminal history but merely
wanted the jury to think about how the defendant’s
past experience in jail would have affected his interac-
tions with the police in the present case. The prosecutor
argued that it did not make any sense, in light of the
defendant’s dozens of arrests and felony convictions,
and his view of the police as manipulative and violent,
to believe the defendant’s testimony that he did not
read, and did not know the contents of, the lengthy,
written statement the police had given him to sign,
implicating him in the victim’s murder.
   We conclude that the prosecutor’s argument was not
denigrating and sarcastic but fairly described the defen-
dant in language reflecting his criminal past and cor-
rectly pointed out the logical inconsistency between
his testimony regarding his extensive criminal history
and his testimony that he did not know what was in the
written statement he had signed. See State v.
Stevenson,
supra,
269 Conn. 584
(prosecutor’s remark during clos-
ing argument describing defendant’s explanation as
‘‘totally unbelievable’’ was ‘‘a comment on the evidence
presented at trial, and it posited a reasonable inference
that the jury itself could have drawn’’ [internal quotation
marks omitted]). Accordingly, the prosecutor’s argu-
ment was not improper.
   We next consider the prosecutor’s allegedly improper
comment during rebuttal argument that the defense
would have criticized the validity of the defendant’s
written statement even if it had been video-recorded.
The prosecutor argued: ‘‘And now [defense counsel]
talks about this being the age of technology, you know,
[and that a confession] should be recorded, and that we
wouldn’t be here if they had recorded the confession.
Really? So, you wouldn’t say that we had stopped the
video camera at a particular time, and restarted it,
and you wouldn’t say that we turned it off and whacked
the defendant around, or that we did all these other
things, or that we had photoshopped it, or added stuff
to it? You have the evidence that’s before you.’’ (Empha-
sis added.)
  We first note that moments before the prosecutor
made this argument, defense counsel argued that the
Waterbury Police Department had the capacity to video-
record interviews with arrested persons to eliminate
any future confusion as to how a statement had been
obtained and that, if there had been a video-recorded
statement in the present case, ‘‘we wouldn’t even be
playing around with this.’’12 Accordingly, the prosecu-
tor’s argument was intended to respond to defense
counsel’s remarks by pointing out that the use of such
technology would not necessarily guarantee certainty
and eliminate confusion since claims of photoshopping,
i.e., the manipulation of a photograph, or turning the
video recorder on and off could still be made to impugn
the integrity of a recording. We therefore conclude that
the prosecutor’s argument was not improper.
   The next alleged impropriety was the prosecutor’s
comment that the defense had focused on insignificant
matters to raise reasonable doubt in the jurors’ minds.13
After defense counsel argued that the jury should con-
sider as a ‘‘key piece of evidence’’ the fact that nothing
on the victim’s body, including a hair on her face, could
be traced to the defendant, the prosecutor argued in
rebuttal that the state did not have to make a perfect
case. In support of this point, he specifically argued
that defense counsel’s reference to the lack of forensic
evidence connecting the defendant to a hair on the
victim’s face was irrelevant and should not contribute
to the jury’s consideration of reasonable doubt. He spe-
cifically urged the jury to consider that ‘‘[t]here is not
one shred of evidence, not one shred of evidence, that
that hair has any importance at all in this case, but
what the defense attorney wants you to do is say, ‘that’s
reasonable doubt.’ That’s not reasonable doubt. There
is no evidence about what it was.’’ (Emphasis added.)
   We conclude that the prosecutor’s argument was not
improper. Defense counsel first argued that there was
no forensic evidence, including the hair found on the
victim’s face, connecting the defendant to the victim.
The defense thus opened the door for the prosecutor
to argue in rebuttal that the lack of evidence connecting
the hair to the defendant was not only unimportant but
insufficient to support a finding of reasonable doubt.
Accordingly, the prosecutor did not improperly ‘‘deni-
grate’’ the defendant’s theory of the case but properly
challenged the significance of the evidence on which
the defense had relied.
   We finally consider the prosecutor’s reference to
‘‘happy hour at the police department’’ in response to
defense counsel’s argument that the defendant did not
understand the written statement he signed because
his request for his prescription medication was denied
and he thus was mentally impaired. The prosecutor
argued: ‘‘[The defendant] could remember even without
this medication all of the details of what happened
in the police department, and he was supposedly—
apparently it was happy hour at the police department.
I mean, you know, you can get rum, you can get tequila,
you can get long-neck [beers] and cups of brandy, so
drunk that he couldn’t control himself in terms of not
signing this statement, but [he] can remember every
single detail, didn’t have his medication, after [e]ffects
of crack cocaine, and drunk, yet remembers every single
detail of what happened. Does that make any sense?
Absolutely not.’’ (Emphasis added.)
   The defendant refers to the ‘‘happy hour’’ comment
as unnecessarily sarcastic. We disagree. Although the
prosecutor’s reference to ‘‘happy hour at the police
department’’ was colorful, prosecutors may use rhetori-
cal devices to focus the jury’s attention on points they
want to emphasize during their argument. In this case,
the ‘‘happy hour’’ comment was likely intended to dem-
onstrate the inconsistency between the defendant’s
assertion that he understood everything that had hap-
pened during the interrogation, even after the detectives
had served him liquor and tried to get him drunk, and
his assertion that he had not understood what had hap-
pened during the interrogation because of a mental
impairment caused by his need for medication. It also
very likely was intended to suggest that the defendant’s
testimony that he had been given a variety of alcoholic
beverages during the interrogation was absurd. See,
e.g., State v. Coney,
266 Conn. 787
, 812 n.23,
835 A.2d
977
(2003) (‘‘[a]lthough prosecutors are bound by con-
stitutional constraints and the restraints of adversarial
propriety, they are not shackled by the chains of inade-
quate advocacy’’). Accordingly, the comment was not
improper.
                            2
  The defendant next claims that the prosecutor
improperly appealed to the jurors’ emotions by describ-
ing the case as ‘‘a brutal, vicious, drug-filled homicide,
about a young woman who lost her life at the squeezing
hands of the defendant, who wanted to fuel his lifelong
addition to crack cocaine,’’ and by characterizing Rus-
sell as ‘‘trembling, trembling, physically trembling, cry-
ing uncontrollably almost, during her testimony . . . .’’
We disagree.
  The prosecutor’s description of the case occurred at
the start of his closing argument, in order to focus
the jury’s attention on the brutality of the murder. The
prosecutor argued: ‘‘Let’s keep focused on what this
case is about. This case is about a brutal, vicious,
drug-filled homicide, about a young woman who lost
her life at the squeezing hands of the defendant, who
wanted to fuel his lifelong addiction to crack cocaine.
That’s what this case is about.’’ (Emphasis added.)
  We conclude that the foregoing comment was not
improper because it was an accurate description of
the case. A prosecutor is not precluded from using
descriptive language that portrays the nature and enor-
mity of the crime when supported by the evidence.
Thus, to the extent the prosecutor’s language appealed
to the jurors’ emotions, it did so because of the nature
of the crime and not because of the terminology the
prosecutor used to get his point across. See, e.g., State
v. Reynolds,
264 Conn. 1, 187
,
836 A.2d 224
(2003) (pros-
ecutor may point out egregious nature of conduct under
consideration), cert. denied,
541 U.S. 908
,
124 S. Ct.
1614
,
158 L. Ed. 2d 254
(2004).
   With respect to Russell, the prosecutor argued in part
that, despite her admission that she was a drug user
with many personal issues, her testimony was truthful.14
After describing her drug habit and some of her other
personal problems, the prosecutor urged the jury to
credit her testimony as authentic by arguing that ‘‘[t]he
fact that she would come in and say those things, which
are so embarrassing to her, and that she would be
trembling, trembling, physically trembling, crying
uncontrollably almost, during her testimony, supports
the fact that she was being truthful. And her testimony
corroborates the police testimony because much of
what she says happens is what the police say they heard
from the mouth of the defendant. And look to her
demeanor on the stand.’’ (Emphasis added.)
   We conclude that the prosecutor’s reference to Rus-
sell as physically trembling and crying uncontrollably
during her testimony was not improper. It was intended
to point out certain physical attributes Russell displayed
as a witness that were indicative of her authenticity
and credibility. Shortly before he made the comments,
the prosecutor asked the jury to observe the witnesses
carefully: ‘‘Now, one of the most powerful tools that
you have in your arsenal of common sense is to observe
witnesses on the stand. You all are seated in such a
fashion that you are close to the witness stand. You
can watch how people act. You can watch how they
respond to questions. You can watch the expressions
on their face[s]. And I think it’s not hard, based on this
evidence, to remember . . . Russell’s reaction when
she testified in this case. Her actions physically on the
witness stand were consistent with someone who
was terrified.’’
   ‘‘Our law is well settled that it is a jury’s duty to
determine the credibility of witnesses and to do so
by observing firsthand their conduct, demeanor and
attitude.’’ (Internal quotation marks omitted.) State v.
Gilberto L.,
292 Conn. 226, 247
,
972 A.2d 205
(2009).
Accordingly, we conclude that the prosecutor’s refer-
ence to Russell’s trembling and crying on the witness
stand was not improper and did not unduly appeal to
the jurors’ emotions; rather, it was an accurate descrip-
tion of her demeanor that was intended to persuade
the jury that she was a credible witness.
                            3
  The defendant next claims that the prosecutor argued
facts not in evidence when he stated, in discussing the
crime scene, that the ‘‘details don’t line up perfectly
like they do on TV’’ and when he argued, with respect
to the methods used by the police for obtaining informa-
tion, that it takes more effort to obtain information
from someone who has been through the system. We
disagree.
   The prosecutor argued on rebuttal that the ‘‘details
don’t line up perfectly like they do on TV’’ in discussing
whether Russell’s testimony regarding what had hap-
pened in the basement was consistent with the testi-
mony of the defendant.15 The prosecutor then asked
the jury to use common sense when comparing their
testimony: ‘‘And, you know, all this crime scene stuff.
People watch too much [Crime Scene Investigation
(CSI)]. If things—details don’t line up perfectly like
they do on TV, where they find a twig, or a hair, and,
all of [a] sudden, the whole case is busted wide open.
This is a homicide from [twelve, thirteen] years ago.
Use your common sense and look at the major details
that all do line up.’’ (Emphasis added.)
   We conclude that the prosecutor’s comments com-
paring what ordinarily happens in a popular television
crime show, in which the evidence may appear to be
consistent and point to a specific result, with real life
situations in which the evidence may not be consistent
were not improper because he did not introduce new
facts that would have affected the jurors’ determination
of guilt. The comparison merely was intended to advise
the jurors that scripted television dramas do not neces-
sarily reflect real life situations and that the jurors
should not expect the testimony of different witnesses
to be in perfect accord.
   With respect to the prosecutor’s suggestion on rebut-
tal that it may take more effort to obtain information
from persons who have ‘‘been through the system’’ than
from persons who have not, he did not make the sugges-
tion in the form of a statement of fact but in the form
of the following question: ‘‘And think about just, you
know, use your everyday common sense again. Think
about the evolution of a statement. How is it that the
police get information from people? I’m sure—I’m sure
that there are people who go in without the police even
knowing they’ve committed a crime, and they go to the
front desk and say, ‘I did a horrible thing. I have to tell
you, I killed my wife. I got drunk and I ran over some-
body on the highway. I’m here. Take me. I confess.’
That happens. But, but—somebody who’s been through
the system all that time, don’t you think it takes the
police a little bit of work to get it out of them? Hey,
look. We got . . . Russell. She told us what happened.
We got other witnesses who put you there. You get it
piece by piece. . . . I mean, that’s just human behavior
[to initially deny the truth]. If you are in a position
where you don’t want to tell that you’ve done something
bad, you try to keep it a secret until you know you can’t
keep it a secret anymore.’’ (Emphasis added.)
  We conclude that the prosecutor’s suggestion that it
may take more time to obtain information from some-
one who has ‘‘been through the system’’ was not offered
as an evidentiary fact to be considered by the jury but
as a way to view Russell’s testimony in determining
whether she was a credible witness. Accordingly, the
suggestion did not rise to the level of improper argu-
ment.
                           4
   The defendant next claims that the prosecutor
improperly expressed to the jurors his own belief that
the defendant was guilty when he stated that ‘‘one of
the things that prosecutors sometimes get in trouble
[for] in closing arguments is saying what they believe,
okay. My function here is not to convince you that I
believe the defendant is guilty. What my opinion is does
not matter . . . I’m not here to convince you that I
think he’s guilty.’’ We disagree.
  It is true that the prosecutor stated two different
times in his closing argument that he was not trying to
convince the jurors that he believed the defendant was
guilty.16 His comments, however, although suggestive,
were not improper for two reasons. First, he never
stated his personal belief that the defendant was guilty
but only that his function was not to convince the jury
that he believed the defendant was guilty. Second, his
references to his own belief were accompanied by other
qualifying language indicating that what he believed did
not matter and that the jurors must decide whether the
defendant was guilty by relying on their common sense
and their capacity to critically evaluate the evidence.
Accordingly, the prosecutor’s insinuations regarding his
personal belief as to the defendant’s guilt were not
improper.
                           5
  The defendant next claims that the prosecutor
improperly made two burden shifting arguments when
he stated, with respect to a hair found on the victim’s
face, that the defense had ‘‘access to the state forensic
lab, they can put on witnesses if they want to from the
lab,’’ and when he allegedly misstated the state’s burden
of proof by claiming that it did not have to prove the
moment of death.17 We disagree.
   With respect to the first claim, the prosecutor
responded to defense counsel’s argument that ‘‘a key
piece of evidence’’ was the lack of anything on the
victim’s body, including a hair on her face, that could
be traced to the defendant, as follows: ‘‘There is not
one shred of evidence, not one shred of evidence, that
that hair has any importance at all in this case, but
what the defense attorney wants you to do is say, ‘that’s
reasonable doubt.’ That’s not reasonable doubt. There
is no evidence about what it was. They have access to
want to from the lab. Don’t be led down that path.’’
(Emphasis added.)
  It is well established that a party may comment on an
opposing party’s failure to call a witness during closing
argument. See, e.g., State v. Malave,
250 Conn. 722
,
739–40,
737 A.2d 442
(1999), cert. denied,
528 U.S. 1170
,
120 S. Ct. 1195
,
145 L. Ed. 2d 1099
(2000). In Malave,
we stated that ‘‘we do not prohibit counsel from making
appropriate comment, in closing arguments, about the
absence of a particular witness, insofar as that witness’
absence may reflect on the weakness of the opposing
party’s case. . . . [As] long as counsel does not directly
exhort the jury to draw an adverse inference by virtue of
the witness’ absence . . . [such comment is allowed].’’
(Footnote omitted.) Id., 739; see also State v. Clark,
48
Conn. App. 812
, 831–32,
713 A.2d 834
(comment on
missing witnesses proper when prosecutor did not ask
jurors to draw adverse inference from absence of wit-
nesses), cert. denied,
245 Conn. 921
,
717 A.2d 238
(1998); State v. Ross,
18 Conn. App. 423
, 432–33,
558
A.2d 1015
(1989) (prosecutor’s comment on absence of
witnesses constituted fair argument on weakness of
defendant’s case).
  In the present case, we conclude that the prosecutor
did not ask the jury to draw an adverse inference from
the failure of the defense to call witnesses from the
forensic laboratory to give testimony on the hair, thus
misallocating the burden of proof, but argued instead
that there was no evidence to support defense counsel’s
claim as to the significance of the hair, which the
defense could have adduced by calling witnesses from
the state forensic laboratory. Accordingly, the prosecu-
tor’s comments were directed to the weakness of the
defense’s theory that the hair was a key element in the
case because the defense had produced no evidence
regarding its significance.
    With respect to the second burden shifting claim, the
prosecutor argued: ‘‘I don’t have to prove the moment
of death, and I don’t have to prove that he’s the one
[who] inflicted the fatal blow. As to the felony murder
count, all I have to prove is that these guys were in on
a robbery trying to get that crack cocaine, and, as a
result of that robbery, is that she ended up dead. That’s
it.’’ (Emphasis added.)
   We conclude that the prosecutor’s comment that the
state did not have to prove the moment of death was a
correct statement of the law. The felony murder statute
provides in relevant part: ‘‘A person is guilty of murder
when, acting either alone or with one or more persons,
he commits or attempts to commit robbery . . . and,
in the course of and in furtherance of such crime or of
flight therefrom, he, or another participant, if any,
causes the death of a person other than one of the
participants . . . .’’ General Statutes § 53a-54c. There
is nothing in the statute that requires the state to prove
the moment of death. Accordingly, the prosecutor did
not improperly shift the burden of proof to the defen-
dant when he made this comment.
  In sum, having determined that the defendant’s
claims of prosecutorial impropriety during cross-exami-
nation and closing argument have no merit, we con-
clude that there is no need to consider whether the
defendant was deprived of his right to a fair trial under
the second step of the two step analytical process for
claims of prosecutorial impropriety.
                           III
  The defendant next claims that the state improperly
relied on a different theory in this case than in its case
against Smith, one of the alleged coassailants, when it
charged the defendant with felony murder based on
the predicate felony of attempted robbery but charged
Smith with felony murder based on the predicate felony
of attempted robbery or sexual assault. The defendant
thus claims that his conviction was fundamentally
unfair and his due process rights were violated under
the fourteenth amendment to the United States consti-
tution.
   The defendant relies principally on Smith v. Groose,
205 F.3d 1045
(8th Cir.), cert. denied sub nom. Gammon
v. Smith,
531 U.S. 985
,
121 S. Ct. 441
,
148 L. Ed. 2d 446
(2000), in which the Eighth Circuit Court of Appeals
concluded that a prosecutor’s ‘‘use of inherently factu-
ally contradictory theories violates the principles of due
process.’’ Id., 1052; see also United States v. Higgs,
353
F.3d 281, 326
(4th Cir. 2003). Although the defendant
concedes there is a split of authority on this issue; see,
e.g., United States v. Urso,
369 F. Supp. 2d 254
, 263–64
(E.D.N.Y. 2005) (discussing conflicting authorities);
with no clear majority on either side, he argues that the
authorities holding that the presentation of inconsistent
theories violates due process are more persuasive and
appear to be more consistent with the general tenets
of Connecticut law.
   We conclude that there is no need to address this
issue of first impression in Connecticut because the
defendant has failed to persuade us that the charges
and theories in the two cases are contradictory. See
State v.
Colon, supra,
272 Conn. 244
(concluding that
defendant’s reliance on Smith v.
Groose, supra,
205
F.3d 1045
, was misplaced and avoiding consideration
of whether presentation of inconsistent theories vio-
lates due process because prosecutor ‘‘was not pursuing
inherently factually contradictory theories, as the
defendant claim[ed]’’). In the present case, both the
defendant and Smith were charged with felony murder
based on the predicate felony of attempted robbery.
The fact that the felony murder charge in Smith’s case
also was based on the predicate felony of sexual assault
does not mean, however, that the charges against the
two men and the theories on which they were based
were inconsistent or contradictory. The attempted rob-
bery and sexual assault that ended with the victim’s
murder were part of one continuous series of actions
by three different men. See part IV of this opinion.
Accordingly, the charges were complementary and
were based on the state’s evaluation of the evidence
indicating the nature and extent of each man’s participa-
tion in different aspects of the crimes against the victim.
                            IV
   The defendant next claims that the evidence was
insufficient to support his conviction of felony murder.
He claims that, although the evidence established that
the victim died and that an attempted robbery occurred,
it also established that the victim was sexually
assaulted. Accordingly, it was incumbent on the state
to prove that the victim was killed in the course of and
in furtherance of the attempted robbery rather than the
sexual assault, which the state failed to do. The state
responds that the evidence was sufficient to support
the defendant’s conviction because the jury reasonably
could have found that the victim died after being manu-
ally strangled by the defendant and Smith and that her
death occurred within the period immediately before
or after commission of the attempted robbery. The state
also argues that the jury reasonably could have found,
on the basis of the evidence, that the homicidal act was
within the contemplation of the defendant and Smith
because both men took turns manually strangling the
victim in an attempt to force her to release the crack
cocaine. We agree with the state.
    The following additional facts are relevant to our
resolution of this issue. On March 7, 2009, the day after
the defendant was arrested and charged with murder,
he gave oral and written statements to the police regard-
ing his involvement in the crime. In his statements, the
defendant explained that, in 1999, he was a ‘‘runner’’
who referred drug purchasers to drug sellers and
received drugs in exchange for the referrals. In March,
1999, he brought the victim to a drug seller for a $100
purchase of crack cocaine and received $30 worth of
crack cocaine in return. He and the victim then went
to the basement of a house on Burton Street ‘‘where
lots of people go to get high.’’ Smith, who also was in
the basement, began to argue with the victim about
giving him some of her crack cocaine. Smith then hit
the victim in her face, which caused her to fall down.
Believing that the crack cocaine was in one of the vic-
tim’s hands, which was clenched, and knowing that
she had a fairly large quantity of the substance, the
defendant explained in his signed, written statement:
‘‘I thought to myself, why should [Smith] get all the
crack? . . . I want to get some for myself, so I went
at [the victim]. [The victim] was trying to wrestle out
from under [Smith], so I went up to the top of her head
and tried to control her head and get the crack. It was
a frenzy. I grabbed her by the neck and, at one point
to control her, I hit her in the head a couple [of] times.
When I had her by the neck, I was squeezing her neck,
trying to knock the wind out of her. After I had her
by the neck, my hands were mostly on her chest and
shoulders, but I did grab her neck a couple more times.
Then [Smith] started to choke her, and she started to
go out, by that, I mean, pass out. Then another guy
jumped [in], and he hit her in the stomach. At one point,
[Smith] got a metal thing. It was like some frame of a
table or chair and [he] started to swing at [the victim].
It hit both me and her. All the while, [Smith] was still
choking her. I was trying to grab at her hand to get the
crack, but she wouldn’t let go. When this was all going
on, I remember seeing [Russell] . . . . I’m not sure
when [Russell] left. The third guy started to pull [the
victim’s] pants down and then [Smith] pulled up her
shirt; this is when [the victim] let go of the crack, when
she tried to hold her pants so they wouldn’t get down.
[Smith] started to choke her again, and, eventually, she
went out. When I mean she went out, her eyes were
closed, she wasn’t fighting no more. I don’t know if she
was dead or not, but she wasn’t moving. I don’t even
know if she was breathing. The third guy was still pulling
her pants down. I knew this was bad, so I got up and
got out of there. I don’t know what happened to the
crack. I’m sure someone tried to get if off the floor.’’
The defendant later identified Smith and Daniel from
photographic arrays as the other two participants in
the incident.
   ‘‘In reviewing a sufficiency of the evidence claim, we
apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt. . . .
  ‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the jury’s verdict of guilty. . . .
   ‘‘Additionally, the jury must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, [but] each of
the basic and inferred facts underlying those conclu-
sions need not be proved beyond a reasonable doubt.
. . . In evaluating evidence, the [finder] of fact is not
required to accept as dispositive those inferences that
are consistent with the defendant’s innocence. . . .
The [finder of fact] may draw whatever inferences from
the evidence or facts established by the evidence it
deems to be reasonable and logical. . . .
   ‘‘Finally, [t]he trier of fact may credit part of a witness’
testimony and reject other parts. . . . [W]e must defer
to the jury’s assessment of the credibility of the wit-
nesses based on its firsthand observation of their con-
duct, demeanor and attitude . . . . This court cannot
substitute its own judgment for that of the jury if there
is sufficient evidence to support the jury’s verdict.’’
(Citations omitted; internal quotation marks omitted.)
State v. Brown,
299 Conn. 640
, 646–48,
11 A.3d 663
(2011).
   In order to sustain the conviction of felony murder,
the record must reflect that the state proved beyond a
reasonable doubt that the victim’s death was caused in
the course of and in furtherance of the predicate felony,
in this case, attempted robbery. See General Statutes
§ 53a-54c (‘‘[a] person is guilty of murder when, acting
either alone or with one or more persons, he commits
or attempts to commit robbery . . . and, in the course
of and in furtherance of such crime or of flight there-
from, he, or another participant, if any, causes the death
of a person other than one of the participants’’). The
requirement that the death occur ‘‘in the course of’’
the underlying felony imposes a temporal limitation on
felony murder; State v. Ghere,
201 Conn. 289, 297
,
513
A.2d 1226
(1986); whereas the requirement that the
death occur ‘‘in furtherance of’’ the underlying felony
imposes a causal limitation. State v. Young,
191 Conn.
636, 642
,
469 A.2d 1189
(1983).
   Applying these principles, we conclude that the vic-
tim’s murder was committed during the course of and
in furtherance of the predicate offense of attempted
robbery.18 With respect to the first requirement, we have
stated that, under General Statutes § 53a-133, ‘‘if the
use of force occurs during the continuous sequence of
events surrounding the taking or attempted taking, even
though some time immediately before or after, it is
considered to be ‘in the course of’ the robbery or the
attempted robbery within the meaning of the statute.’’
State v.
Ghere, supra,
201 Conn. 297
. We thus concluded
in Ghere, in which the state was required to prove that
force was used in an attempted robbery, that, even
though the use of force occurred after the demand for
money, the temporal requirement between the use of
force and the robbery had been met because the use
of force occurred during a continuous sequence of
events and the weapon was in the defendant’s hand
when the demand was made, even though the victim
initially had not seen it.
Id., 292
, 297–98.
  Similarly, in the present case, Russell testified and
the defendant confessed that he attacked the victim
and started choking her after she refused to comply
with his demand for drugs or money. The defendant
further testified that Smith choked the victim during
the subsequent struggle, which the defendant described
as a ‘‘frenzy,’’ while the defendant tried to pry the crack
out of her clenched hand. Although the defendant stated
that Smith continued to choke the victim to death after
she released the crack in order to defend herself against
Daniel, there is no doubt that the foregoing events
occurred in a continuous, uninterrupted sequence over
a short period of time, there being no apparent break
between Smith’s initial argument with the victim and
her ultimate strangulation. We therefore conclude that
the temporal requirement is satisfied and that the vic-
tim’s death occurred in the course of the attempted
robbery.
   We also conclude that her death occurred in further-
ance of the attempted robbery. This court has stated
that ‘‘the phrase ‘in furtherance of’ was intended to
impose the requirement of a relationship between the
underlying felony and the homicide beyond that of mere
causation in fact, similar to the concept of proximate
cause in the law of torts. Primarily its purpose was to
limit the liability of a person whose accomplice in one
of the specified felonies has performed the homicidal
act to those circumstances which were within the con-
templation of the confederates to the undertaking, just
as the liability of a principal for the acts of his servant
is similarly confined to the scope of the agency. All
who join in a common design to commit an unlawful
act, the natural and probable consequence of the execu-
tion of which involves the contingency of taking human
life, are responsible for a homicide committed by one
of them while acting in pursuance of, or in furtherance
of, the common design.’’ (Emphasis omitted; internal
quotation marks omitted.) State v.
Young, supra,
191
Conn. 642
.
   In the present case, the defendant, Smith and Daniel
attacked the victim simultaneously to obtain her drugs
or money. The defendant’s written confession indicates
that he ‘‘went up to the top of her head and tried to
control her head and get the crack. It was a frenzy. I
grabbed her by the neck and, at one point to control
her, I hit her in the head a couple [of] times. When I
had her by the neck, I was squeezing her neck, trying
to knock the wind out of her. After I had her by the
neck, my hands were mostly on her chest and shoulders,
but I did grab her neck a couple more times. Then
[Smith] started to choke her, and she started to go out
. . . .’’ We therefore conclude that the victim’s death
occurred in furtherance of the attempted robbery.
   The fact that the victim may have died while Smith
purportedly continued to choke her after she released
the crack cocaine does not mean that her death did not
occur in furtherance of the attempted robbery. The
choking was part of one continuous event that was
initiated and perpetuated by the victim’s refusal to sur-
render the crack cocaine and by her attackers’ determi-
nation to obtain it. Furthermore, the defendant had to be
aware that choking the victim likely would not merely
‘‘knock the wind out of her’’ but easily could result
in her death. Finally, the jury reasonably could have
believed that the sexual assault was intended to force
the victim to release the crack cocaine, which,
according to the defendant’s written statement, is
exactly what happened when Daniels started pulling
down her pants. Consequently, whether the victim’s
death occurred before or after she released the crack
cocaine is of no importance.
  Viewing the evidence in the light most favorable to
sustaining the defendant’s conviction, we conclude that
the jury reasonably could have found that the victim’s
death occurred during the course of and in furtherance
of the attempted robbery, and, therefore, the evidence
was sufficient to support the jury’s finding that the
defendant was guilty of felony murder.
                           V
   The defendant’s final claim is that the trial court
improperly denied his motion to suppress his oral and
written statements to the police on March 6 and 7, 2009,
in which he described his role in the events leading up
to the victim’s murder. The defendant argues that the
statements were obtained involuntarily because he was
under the influence of crack cocaine at the time of his
initial interrogation and because his statements on the
following day were made while he was suffering from
crack cocaine withdrawal and in need of his prescrip-
tion medication. The state responds that the statements
were not made involuntarily because the trial court
made no findings regarding his apparent drowsiness on
the first day of interrogation, and, in any event, the
defendant made no inculpatory statements on that day.
With respect to the second day of interrogation, the
state argues that the trial court did not find credible
the defendant’s testimony that he was under the influ-
ence of crack cocaine when he made the oral and writ-
ten statements that implicated him in the crime. We
agree with the state.
  The following additional facts are relevant to our
resolution of this issue. On March 6, 2009, the day of
his arrest, the defendant was interviewed at the police
station by Detectives George Tirado and Timothy Jack-
son. After signing a written advisement and waiver of
his rights, the defendant repeatedly denied having any
knowledge of, or responsibility for, the victim’s murder.
He later admitted that he had been present at 17 Burton
Street when the crime was committed, but he denied
any involvement. The defendant eventually began to
nod off and fall asleep, telling the detectives that he
was feeling the effects of, and ‘‘coming down’’ from,
his prior consumption of crack cocaine. He then was
booked and taken to a holding cell for the evening.
  Around 12 p.m. the following day, the defendant was
again interviewed by Tirado, who was accompanied by
Sergeant Michael Slavin. At that time, the defendant
signed another written advisement and waiver of rights.
After being confronted with information obtained by
the police from Russell and Daniel, the defendant
described his role in the crime, and provided and signed
a detailed, written statement after signing a second
written advisement and waiver of rights. Slavin testified
that the defendant did not ask for any medication during
the interrogation and that he had no apparent problem
seeing or reading any printed materials he was given.
Tirado further testified that the defendant ‘‘definitely
had . . . slept off his high’’ from the day before and
was able to respond to questions, did not appear con-
fused, and did not ask for any medication. Slavin and
Tirado also testified that the defendant never was
threatened, yelled at, hit or otherwise mistreated during
the interrogation.
   Thereafter, prior to commencement of the trial, the
defendant filed a motion to suppress his oral and written
statements. The defendant claimed that the statements
were obtained illegally under the federal and state con-
stitutions because they had not been made pursuant to
a knowing and intelligent waiver of his right against
self-incrimination and with the assistance of counsel.
Following a hearing, the court denied the motion to
suppress.
   In an oral ruling on the motion, the court first referred
to the defendant’s allegations, which he also made at
trial, that he gave his statement to the police only after
suffering physical abuse and assaultive behavior by
members of the Waterbury Police Department, the con-
tinued effects of withdrawal from crack cocaine,
reduced inhibitions arising from his need for prescribed
medication, and intoxication due to the consumption
of alcoholic beverages that the police had given to him.
The court nonetheless concluded that the statements
were voluntary. The court explained that the defendant
had been advised of his rights on March 6, the first day
of interrogation, and twice on March 7, and that he had
waived his rights before giving his written statement
on March 7. The court stated that the proper focus in
deciding whether a statement was voluntary was on the
conduct of the police and whether the record contained
evidence of threats, promises or other coercive or
deceptive measures. The court also stated that it had
considered the testimony of Tirado and Slavin, the
exhibits presented and the credibility of the witnesses,
and had determined, in light of the totality of the circum-
stances, that the defendant’s written statement was vol-
untary.
  At trial, the defendant repudiated everything he had
disclosed in the written statement and denied being
present at the crime scene. Although he conceded that
he had been arrested and taken to the police station,
had signed a written statement waiving his rights, and
had spoken to the police, he denied all knowledge of,
or participation in, the victim’s murder. Consistent with
his testimony at the suppression hearing, he testified
that his denials caused Tirado to punch him several
times in the head and that, when he continued his deni-
als, he was given liquor and beer. After spending the
night in the police station, he was interviewed again
the following day, at which time he continued to deny
knowledge of the victim’s murder. According to the
defendant, one of the detectives said that he knew the
defendant had not committed the crime but should tell
the police who did. When the defendant asked to call
his wife to bring him his prescription medication, he
was told that he could do so only after he revealed
what he knew about the crime. The defendant testified
that he eventually signed all of the papers he was given,
including the written statement, because he was told
to do so and wanted to get back to his jail cell. He
added that the police indicated which photographs to
select from the photographic arrays and that he had not
been given an opportunity to read any of the documents
before he was asked to sign them.
   After the jury found the defendant guilty of felony
murder and the defendant appealed to this court, he
filed a motion for an articulation of the trial court’s
ruling on twelve different issues. The trial court denied
the motion, but this court granted the defendant’s
motion for review and ordered the trial court to respond
to five of the issues19 relating to the trial court’s findings
on his mental health and drug addiction. The trial court
responded that it had made no findings relating to four
of the issues because it did not deem the defendant’s
testimony credible. With respect to the issue of the
defendant’s request for medication during the second
day of interrogation, the court stated that Tirado had
testified that the defendant never indicated any need
for his prescription medication, the detective did not
sense that the defendant needed medication, and the
detective thus made no inquiry regarding his need for
medication.
   ‘‘[T]he use of an involuntary confession in a criminal
trial is a violation of due process. . . . [T]he test of
voluntariness is whether an examination of all the cir-
cumstances discloses that the conduct of law enforce-
ment officials was such as to overbear [the defendant’s]
will to resist and bring about confessions not freely
self-determined . . . . The ultimate test remains . . .
[i]s the confession the product of an essentially free
and unconstrained choice by its maker? If it is, if he
has willed to confess, it may be used against him. If it
is not, if his will has been overborne and his capacity
for self-determination critically impaired, the use of his
confession offends due process. . . . The determina-
tion, by the trial court, whether a confession is voluntary
must be grounded [in] a consideration of the circum-
stances surrounding it. . . .
   ‘‘Factors that may be taken into account, upon a
proper factual showing, include: the youth of the
accused; his lack of education; his intelligence; the lack
of any advice as to his constitutional rights; the length
of detention; the repeated and prolonged nature of the
questioning; and the use of physical punishment, such
as the deprivation of food and sleep. . . . Under the
federal constitution, however, coercive police activity
is a necessary predicate to the finding that a confession
is not voluntary . . . .
   ‘‘It is well settled that [t]he state bears the burden of
proving the voluntariness of the defendant’s confession
by a preponderance of the evidence. . . . [As for] the
scope of our review] we note the established rule that
[t]he trial court’s findings as to the circumstances sur-
rounding the defendant’s interrogation and confession
are findings of fact . . . which will not be overturned
unless they are clearly erroneous.’’ (Citations omitted;
internal quotation marks omitted.) State v. Pinder,
250
Conn. 385
, 418–20,
736 A.2d 857
(1999).
  ‘‘[A]lthough we give deference to the trial court con-
cerning these subsidiary factual determinations, such
deference is not proper concerning the ultimate legal
determination of voluntariness. . . . Consistent with
the well established approach taken by the United
States Supreme Court, we review the voluntariness of
a confession independently, based on our own scrupu-
lous examination of the record.’’ (Citations omitted;
internal quotation marks omitted.)
Id., 420
. ‘‘[A]pplying
the proper scope of review to the ultimate issue of
voluntariness requires us . . . to conduct a plenary
review of the record in order to make an independent
determination of voluntariness.’’
Id., 421
.
   We conclude, on the basis of the trial court’s factual
findings and under the totality of the circumstances,
that the defendant’s written statement was voluntary.20
Although we recognize that the trial court may consider
a defendant’s emotional state, intoxication and mental
disease in determining whether a confession is volun-
tary; see, e.g., State v. Usry,
205 Conn. 298
, 305–306,
533 A.2d 212
(1987); the trial court in the present case
stated in its ruling and articulation that it had evaluated
the testimony of the police officers and the defendant
and that it did not deem credible the defendant’s testi-
mony that he was under the influence of drugs and in
need of his prescription medication on March 7, the
second day of interrogation, when he signed the incrimi-
nating statement.
   ‘‘[W]e may not substitute our judgment for that of the
trial court when it comes to evaluating the credibility of
a witness. . . . It is the exclusive province of the trier
of fact to weigh conflicting testimony and make deter-
minations of credibility, crediting some, all or none of
any given witness’ testimony. . . . Questions of
whether to believe or to disbelieve a competent witness
are beyond our review. As a reviewing court, we may
not retry the case or pass on the credibility of witnesses.
. . . We must defer to the trier of fact’s assessment of
the credibility of the witnesses that is made on the basis
of its firsthand observation of their conduct, demeanor
and attitude.’’ (Internal quotation marks omitted.) State
v. DeMarco,
311 Conn. 510
, 519–20,
88 A.3d 491
(2014).
We therefore conclude that the trial court’s credibility
determination and its derivative findings that the defen-
dant was not suffering from the effects of crack cocaine
or from a lack of prescription medication when he
signed the confession were not clearly erroneous, and,
because there were no undisputed facts in the record
that would lead us to conclude that the confession was
involuntary, the defendant cannot prevail on his claim
that the trial court improperly denied his motion to
suppress.
   The judgment is affirmed.
  In this opinion ROGERS, C. J., and EVELEIGH,
ESPINOSA and ROBINSON, Js., concurred.
   1
     General Statutes § 53a-54c provides: ‘‘A person is guilty of murder when,
acting either alone or with one or more persons, he commits or attempts
to commit robbery, burglary, kidnapping, sexual assault in the first degree,
aggravated sexual assault in the first degree, sexual assault in the third
degree, sexual assault in the third degree with a firearm, escape in the first
degree, or escape in the second degree and, in the course of and in further-
ance of such crime or of flight therefrom, he, or another participant, if any,
causes the death of a person other than one of the participants, except that
in any prosecution under this section, in which the defendant was not the
only participant in the underlying crime, it shall be an affirmative defense
that the defendant: (1) Did not commit the homicidal act or in any way
solicit, request, command, importune, cause or aid the commission thereof;
and (2) was not armed with a deadly weapon, or any dangerous instrument;
and (3) had no reasonable ground to believe that any other participant was
armed with such a weapon or instrument; and (4) had no reasonable ground
to believe that any other participant intended to engage in conduct likely
to result in death or serious physical injury.’’
   2
     The defendant initially was charged with one count of murder. On March
20, 2009, the state filed a substitute information containing seven counts,
including the original count of murder. On April 27, 2011, the state filed a
final substitute information charging the defendant with murder and fel-
ony murder.
   3
     The sixth amendment to the United States constitution provides in rele-
vant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him; [and] to have compulsory
process for obtaining witnesses in his favor . . . .’’
   ‘‘A defendant’s right to present a defense is rooted in the compulsory
process and confrontation clauses of the sixth amendment . . . [which]
are made applicable to state prosecutions through the due process clause
of the fourteenth amendment. Pointer v. Texas,
380 U.S. 400, 403
,
85 S. Ct.
1065
,
13 L. Ed. 2d 923
(1965) (right to confrontation); see Washington v.
Texas,
388 U.S. 14, 18
,
87 S. Ct. 1920
,
18 L. Ed. 2d 1019
(1967) (right to
compulsory process).’’ (Internal quotation marks omitted.) State v. Hedge,
297 Conn. 621
, 625–26 n.2,
1 A.3d 1051
(2010).
   4
     The defendant also claims that the trial court should have denied the
state’s oral motion in limine summarily as procedurally improper because
Practice Book § 42-15 provides that a motion in limine must be in writing.
The defendant argues that the apparent purpose of a written motion in
limine, although not stated in the rules of practice, is to provide fair notice
of the objection to the opposing party, and that the state’s motion was
designed to circumvent this purpose. The defendant, however, did not object
to the motion on procedural grounds at the time it was made, does not
claim on appeal that he was not provided with adequate notice to respond
or that he otherwise was harmed by the procedural impropriety, and cites
no authority in support of his claim. Accordingly, we conclude that the
claim has no merit.
   5
     The following exchange occurred between the prosecutor and the
defendant:
   ‘‘Q. . . . So, how many felony convictions would you say that you have
in all?
   ‘‘A. I never said I wasn’t arrested a multitude of times. I was arrested a
lot, a lot, a lot of times.
   ‘‘Q. I know. You were arrested a ton of times, but I’m talking about just
the arrests that resulted in felony convictions. How many would you say
you have?
   ‘‘A. I have no idea.
   ‘‘Q. You don’t keep track of your criminal record?
   ‘‘A. No. I pled guilty to anything and everything just to get it over with.
   ‘‘Q. And, now, on the issue of being arrested, you’ve been arrested dozens
and dozens of times, right?
   ‘‘A. Yes, I have.
   ‘‘Q. Not only here in Waterbury but out of state?
   ‘‘A. Yes, I have.
   ‘‘Q. What states?
   ‘‘A. Georgia and New Hampshire.
   ‘‘Q. Pretty much everywhere you’ve been, right?
                                       ***
   ‘‘A. No. I’ve been a whole lot of places that I ain’t been arrested.’’ (Empha-
sis added.)
   6
     The following exchange occurred between the prosecutor and the
defendant:
   ‘‘Q. Basically, [the police] wanted you to implicate yourself in a homicide
that you knew nothing about?
   ‘‘A. No. They wanted me to implicate other people. They . . . kept telling
me, [we] know you didn’t do it, just tell us what happened.
   ‘‘Q. They want you to say things that aren’t true in relation to this homicide?
   ‘‘A. I don’t know if they’re true or not.
   ‘‘Q. They want you to say things that you didn’t know whether or not
they are true about the homicide?
   ‘‘A. Yes. Yes.
   ‘‘Q. And that goes on for hours and hours and hours on day one?
   ‘‘A. Yes.
   ‘‘Q. They get you drunk, punch you, scream at you. I’m assuming—correct
me if I’m wrong—you are not feeling very good about the Waterbury police
at that point, right?
   ‘‘A. No. Punched me up, then [got] me drunk and [made] friends with me
. . . everybody was buddy, buddy.
   ‘‘Q. Did you forgive them for punching you because they gave you a couple
of drinks?
   ‘‘A. No. I forgot about [Detective George] Tirado.
   ‘‘Q. Did you think, all of a sudden, boy, these are a good bunch of guys,
I think I’ll, you know, hang out with them, do what they want me to do?
   ‘‘A. No, because I didn’t do what they wanted me to do. I didn’t know
nothing.
   ‘‘Q. So, you would be at that point extremely suspect of anything that
they ask you to sign or any piece of paper that they put under you and said,
‘don’t worry about it, just sign off on it.’ Wouldn’t you be a little bit leery
about [that]?’’
   ‘‘A. No, because [the] Waterbury police beat up everybody.
   ‘‘Q. Okay. And they beat up everybody because the people won’t tell them
what they want to [hear]?
   ‘‘A. Evidently, yes.
                                       ***
   ‘‘Q. Okay. So are those the kind of people that you’re going to put your
faith in and trust when they put a piece of paper under your nose and ask
you to sign it?
   ‘‘A. No, but I would sign it to stop it, to get them to leave me alone.’’
(Emphasis added.)
   7
     The following exchange occurred between the prosecutor and the
defendant:
   ‘‘Q. Okay. Now, before we get to day two [of the interrogation], let’s talk
about the medications that you’re supposedly on. Okay, again, like with the
glasses, are you making a claim to the jury that you couldn’t understand
what was going on because you didn’t have your pills?
  ‘‘A. Never said that.
  ‘‘Q. Okay. So did the fact that you . . . didn’t have access to your pills,
did that in any way restrict your ability to understand what was going on?
  ‘‘A. No.
  ‘‘Q. Did you understand what [the police] were saying to you.
  ‘‘A. Yes.
  ‘‘Q. It’s not like—correct me if I’m wrong—you’re not out of your mind
crazy, you don’t know what’s going on, right?
  ‘‘A. No.’’ (Emphasis added.)
  8
    The following exchange occurred between the prosecutor and the
defendant:
  ‘‘Q. Has your addiction caused you to spend pretty much your whole life
in and out of jail?
  ‘‘A. Yes.
                                      ***
  ‘‘Q. Has it cost you the loss of relationships with your family?
  ‘‘A. No. Abuse caused me the loss of relationship[s] with my family. . . .
  ‘‘Q. Does that make you angry?
  ‘‘A. That’s what got me using the drugs to cloud—to get rid of [the] demons
that were in my head. That’s what did it.
  ‘‘Q. So [you were] beaten violently as a child?
  ‘‘A. Yes.
  ‘‘Q. Run to drugs to calm the demons in your head?
  ‘‘A. To quiet them down, yes.
  ‘‘Q. So, if you don’t have the drugs, are the demons screaming at you?
  ‘‘A. Telling me to get away from everybody, and even when I’m on the
drugs, they make me leave people alone. They make me get away from
people, not be around them. I don’t like to be around people. Being around
people scares me. I’m a big man today, yes.’’ (Emphasis added.)
  9
    The following exchange occurred between the prosecutor and the
defendant:
  ‘‘Q. Okay. So . . . Russell never had a grudge against you?
  ‘‘A. I don’t think so.
  ‘‘Q. Never had run-ins with her?
  ‘‘A. I met her a couple of times on the street. She kept . . . trying to
seduce me with drugs. I never wanted nothing to do with her.
  ‘‘Q. Nothing that would cause you to think that she would falsely accuse
you of being there in that basement?
  ‘‘A. I don’t know.
  ‘‘Q. Based on your past with her?
  ‘‘A. I don’t know. A woman scorn[ed] could do anything.
  ‘‘Q. Now she’s scorn[ed]?
  ‘‘A. Like I told you, she tried to seduce me, entice me with narcotics on
several occasions, but I don’t do heroin.
  ‘‘Q. And did you get the sense from her testifying that she was trying
to seduce you at that point when she was up there crying for hours in a
row, refusing to look over at you?
  ‘‘A. She stuck her tongue out at me. What do you mean?
  ‘‘Q. She stuck her tongue out at you?
  ‘‘A. Yes, she did. You saw it.’’ (Emphasis added.)
  10
     The following exchange occurred between the prosecutor and the
defendant:
  ‘‘Q. And how many times did you say you’ve been arrested before?
  ‘‘A. You know.
  ‘‘Q. Well, I’m asking you. I don’t testify. How many times have you
been arrested?
  ‘‘A. Forty. Thirty something, forty something.
  ‘‘Q. Based on those numerous interactions with the police, you didn’t
think you had the right to read through the statement before you signed it?
  ‘‘A. I’ve never had to sign a statement, ever, never, never, never. I [have]
never been questioned by detectives, never, ever, ever, never. Is that enough
nevers for you? Never.
  ‘‘Q. No, it’s not because—
  ‘‘A. I can tell you never—I [have] never been arrested. I [have] never been
questioned. [I] never went through this. . . . I never went through this. I
never did this before.
  ‘‘Q. Come on. You said that [one of the police officers], the good guy, had
brought you down and questioned you about this case in the past?
  ‘‘A. I didn’t have to sign nothing.
   ‘‘Q. But you just testified that you [had] never been questioned before,
ever, ever, ever?
   ‘‘A. [He] [w]asn’t question[ing] [me]. He ask[ed] me, would I give [a] blood
sample and would I give [a] hair sample.
   ‘‘Q. Those end with a question mark. Aren’t those questions?
   ‘‘A. And I said, yes. I didn’t have to sign anything to say yes. I said yes.
                                         ***
   ‘‘Q. Okay. Your testimony is, as I understand it . . . I don’t know nothing
about what happened in the basement?
   ‘‘A. Exactly.
   ‘‘Q. Did it surprise you when they put in front of you a three, almost four
full page statement of single spaced typed lines and asked you to sign off
on it? Did that cause you to think, boy, I don’t know anything about this
case. I wonder why there’s so much stuff in this statement?
   ‘‘A. I signed it and I initialed it. . . . But for the nineteenth time, I didn’t
read it. I did not read it. I didn’t want to read it. I didn’t care about reading
it. I just wanted to sign it and go back downstairs and be locked away so
that way . . . we can move on to where we are right now and—
   ‘‘Q. Did it cause you any concern or did it pop a light bulb in your head,
boy, there’s a lot of typed up words on here; I wonder why there’s so many?
   ‘‘A. There’s a lot of typed up words in the newspaper; that mean[s] noth-
ing.’’ (Emphasis added.)
   11
      The prosecutor argued: ‘‘Now, the defendant, by anybody’s estimation
and certainly by this evidence, is a hardened criminal. He’s been in and
out of . . . jail his entire adult life. I don’t condemn him for that. I don’t
ask you to say, oh, he’s a bad man, he must be guilty, but I ask you to think
about—think about how that would affect your dealings with the police.
He’s been arrested dozens and dozens of times. It’s not like it’s somebody
who’s never had any interaction with the police and can’t handle himself
in the police department. He has numerous felony convictions, in and out
of jail his entire life. Did he strike you, during his testimony, and during
how he carefully chose the words that he responded to the questions to,
and how he would challenge me—that’s fine, how he would challenge the
judge at times. That’s fine. I have . . . no problem with that. But think
about whether or not that’s consistent with his claim that he didn’t know
what he was signing, that he didn’t read it. You saw him. Does he strike
you as the kind of person who would go along with what the police were
saying without having a little bit of an untrusting eye when he looked at
what they were putting in front of him? That is a key point in this case. His
familiarity with the police department, his distrust of them. By his own
words, he finds them to be violent; he finds them to be manipulative. Is
that the kind of person who’s going to go in and sign a statement without
reading it? It just doesn’t make any sense. He knew he was in trouble. The
police told him from moment one when they put him in the back of the
patrol car, we have an arrest warrant for you for murder. He’s questioned
by Detective [George] Tirado during day one, questioned over, and over,
and over again. Questioned by [Sergeant Michael] Slavin and Tirado on day
two over, and over, and over again. And his testimony just flies in the face
of common sense because, after all that, of course, the police thought he
had something to do with it. They were telling him what other witnesses
had said. They were telling him what . . . Russell had said. How can it
possibly be that, at that point, he signs off on the statement and he thinks
it’s to get him out of trouble? Does that make any sense at all?’’ (Empha-
sis added.)
   12
      Defense counsel argued: ‘‘I asked, and you heard me ask, and you heard
the answer: Does the Waterbury Police Department, the Detective Bureau,
have the capacity to videotape interviews? Do they have the capacity? And
the answer is, yes. We have the capacity. We can do that. And if they did
that, we wouldn’t even be playing around with this. You have cell phones.
I have a cell phone. I could probably record my closing arguments, stand
right here and do that. They have the capacity. It was 1999. They could have
done it. No. I stand corrected, it was 2009. They could have done it.
   ‘‘Yeah. It’s more accurate for a police officer to say he signed these rights
forms than if the police officer were to say, ‘I told him his rights.’ Yeah, it’s
more accurate for a police officer to say he signed this statement than if a
police officer came in and said, ‘He told me he didn’t.’ But this is the age
of technology, and this is the age where we can eliminate questions, we
can eliminate uncertainty, we can eliminate accusations, very, very, simply.
It doesn’t take a whole lot. They have the capacity.’’
   13
      The prosecutor argued: ‘‘[Defense counsel] stands up [and says], ‘beyond
a reasonable doubt, beyond a reasonable doubt. It’s way up here.’ You heard
what beyond a reasonable doubt is in the introductory remarks from the
judge before we even picked you all as jurors. And the one thing you heard
is it’s a human burden. It’s a burden that can be borne by a prosecutor. It
doesn’t mean—and I asked each and every one of you—it doesn’t mean the
perfect case. It doesn’t mean absolutely 100 percent to a scientific certainty.
Those cases don’t exist. The law acknowledges that there are frailties in
human memory, that there are—there is always something that can come
up that you can think about, well, why didn’t they do this? Why didn’t they
do this? What about the hair on the face, right? There is not one shred of
evidence, not one shred of evidence, that that hair has any importance at
all in this case, but what the defense attorney wants you to do is say, ‘that’s
reasonable doubt.’ That’s not reasonable doubt. There is no evidence about
what it was. . . . Keep in mind the one reason that we are here. The one
reason we are here is because [the defendant] got himself in a drug frenzy
and started to choke the life out of [the victim] in order to take her property
by force.’’ (Emphasis added.)
   14
      The prosecutor argued: ‘‘Now, one of the most powerful tools that you
have in your arsenal of common sense is to observe witnesses on the stand.
You all are seated in such a fashion that you are close to the witness
stand. You can watch how people act. You can watch how they respond to
questions. You can watch the expressions on their face[s]. And I think it’s
not hard, based on this evidence, to remember . . . Russell’s reaction when
she testified in this case. Her actions physically on the witness stand were
consistent with someone who was terrified. Do you remember when there
were those long pauses and one especially long pause when I asked her to
identify the defendant? She couldn’t—she couldn’t physically look at him.
She had her hand up, right on the witness stand, her hand up almost her
entire testimony blocking a view toward the defendant. Use your common
sense. Why do you think that is? Why would she be so afraid? Why would
she keep silent for so long? Because she lived in these streets that the
defendant ran for years and years. That’s why she didn’t say anything. And
you got to see how she acted on the witness stand.’’
   The prosecutor subsequently argued: ‘‘And you have . . . Russell, okay.
Is she the perfect witness? Does she, you know, have a long work history,
and go to church on Sundays, and volunteer to help people? No. She’s a
heroin addict. Who do you all expect to be in a basement on Burton Street
getting high? You know, we take the witnesses as we find them. The fact
that she’s a heroin addict corroborates her testimony that she was in the
basement. She went there to get high. Did she seem like she was proud of
what she was? Absolutely not. But think about how hard it must be to get
on the witness stand and come in and say all those embarrassing things
about yourself. Yeah, I wanted to get high. Yes, I am a heroin addict. Yes,
I went and I scored drugs, and I went into the basement and shot them up.
She has a family. You heard about that. She has kids. The fact that she
would come in and say those things, which are so embarrassing to her,
and that she would be trembling, trembling, physically trembling, crying
uncontrollably almost, during her testimony, supports the fact that she
was being truthful. And her testimony corroborates the police testimony
because much of what she says happens is what the police say they heard
from the mouth of the defendant. And look to her demeanor on the stand.’’
(Emphasis added.)
   15
      The prosecutor argued: ‘‘And, you know, the claim that Russell’s testi-
mony—somehow she got it wrong. She has all the right people in the base-
ment at 17 Burton Street. She has the body found within five or ten feet of
where she describes the frenzy, the attack, the choking, the soon to be
sexual assault. Within feet of where the body is found is where she says it
started. And, you know, all this crime scene stuff. People watch too much
[Crime Scene Investigation]. If things—details don’t line up perfectly like
they do on TV, where they find a twig, or a hair, and, all of the sudden, the
whole case is busted wide open. This is a homicide from [twelve, thirteen]
years ago. Use your common sense and look at the major details that all
do line up. She describes a physical attack on [the victim]. The body of [the
victim] supports that. The statement that the defendant gave in writing, and
verbally, to the police support[s] [Russell’s] version of events. The medical
examiner supports her version of events. She says, once things started to
go sour, she got out of there.’’ (Emphasis added.)
   16
      The prosecutor argued: ‘‘Now, one of the things that prosecutors some-
times get in trouble [for] in closing arguments is saying what they believe,
okay. My function here is not to convince you that I believe the defendant
is guilty. What my opinion is does not matter. What I’m here to do is to
ask you to use your God given, everyday common sense. Look at the evidence
in the case, consider what the witnesses said, look at things like corrobora-
tion, look at things like the demeanor of the witnesses on [the] stand, and
draw your own conclusions about what the state has proven in this case.
I’m not here to convince you that I think he’s guilty. What I’m here to do
is to try and convince you that when you look at the evidence in this case
critically, use your everyday common sense. Look at it critically and make
your own decision. And the inescapable conclusion, once you look at all
the evidence in this case, is that the defendant is clearly guilty. We have an
eyewitness and a confession.’’ (Emphasis added.)
   17
      The prosecutor argued: ‘‘It’s a burden that can be borne by a prosecutor.
It doesn’t mean—and I asked each and every one of you—it doesn’t mean
the perfect case. It doesn’t mean absolutely 100 percent to a scientific
certainty. Those cases don’t exist. The law acknowledges that there are
frailties in human memory, that there are—there is always something that
can come up that you can think about, well, why didn’t they do this? Why
didn’t they do this? What about the hair on the face, right? There is not one
shred of evidence, not one shred of evidence, that that hair has any impor-
tance at all in this case, but what the defense attorney wants you to do is
say, ‘that’s reasonable doubt.’ That’s not reasonable doubt. There is no
evidence about what it was. They have access to the state forensic lab, they
can put on witnesses if they want to from the lab. Don’t be led down that
path. Keep in mind the one reason that we are here. The one reason we
are here is because [the defendant] got himself in a drug frenzy and started
to choke the life out of [the victim] in order to take her property by force.
And I don’t have to prove the moment of death, and I don’t have to prove
that he’s the one [who] inflicted the fatal blow. As to the felony murder
count, all I have to prove is that these guys were in on a robbery trying to
get that crack cocaine, and, as a result of that robbery, is that she ended
up dead. That’s it.’’ (Emphasis added.)
   18
      General Statutes § 53a-133 provides: ‘‘A person commits robbery when,
in the course of committing a larceny, he uses or threatens the immediate
use of physical force upon another person for the purpose of: (1) Preventing
or overcoming resistance to the taking of the property or to the retention
thereof immediately after the taking; or (2) compelling the owner of such
property or another person to deliver up the property or to engage in other
conduct which aids in the commission of the larceny.’’
   19
      Four of the questions related to the defendant’s medication, and the
other question related to the defendant’s drug addiction:
   (1) ‘‘Specify whether the court found that the defendant was supposed
to be taking mental health medication . . . at the time of the custodial
interrogation and, if so, who prescribed said medication’’;
   (2) ‘‘Specify whether the court found that the defendant’s inhibitions were
reduced by the lack of his mental health [medication]’’;
   (3) ‘‘Specify whether the police knew or had reason to know or inquire
as to whether the defendant was taking mental health [medication]’’;
   (4) ‘‘Specify whether the defendant was suffering from the effects of
withdrawal from crack cocaine at the time of the custodial interrogation,
and specify the factual and legal bases for that conclusion’’; and
   (5) ‘‘Specify whether the defendant was suffering from a diagnosed mental
illness, whether that condition was bipolar disorder or some other mental
condition, and, if so, whether the Waterbury Police Department had reason
to know or inquire concerning said mental illness.’’
   20
      The defendant does not contest the fact that he was given his Miranda
warnings pursuant to Miranda v. Arizona,
384 U.S. 436
, 478–79,
86 S. Ct.
1602
,
16 L. Ed. 2d 694
(1966).