Date: 08-28-2015

Case Style: State Of Connecticut v. O'Brien-Veader

Case Number: SC19038

Judge: Chief Justice Chase T. Rogers

Court: Connecticut Supreme Court

Plaintiff's Attorney: James A. Killen

Defendant's Attorney: James B. Streeto

Description: The principal issue in this appeal requires us to determine when a prosecutor’s apparent breach of a trial court ruling becomes prosecutorial improprietyimplicatingadefendant’sdueprocessright to a fair trial, rather than an evidentiary matter without constitutionalimport.Thedefendant,MatthewO’BrienVeader, appeals1 from the judgment of the trial court, rendered after a jury trial, convicting him of murder in violation of General Statutes § 53a-54a (a),2 kidnapping in the second degree in violation of General Statutes § 53a-94 (a), and felony murder in violation of General Statutes§ 53a-54c.Onappeal,thedefendantclaimsthat he is entitled to a new trial because: (1) numerous instancesofprosecutorialimproprietyduringthecrossexaminationofthedefendant’sexpertwitnessandclosing arguments deprived him of his right to a fair trial; (2) the trial court improperly denied his motions for a mistrial; (3) the evidence is insufficient to support his kidnapping conviction under State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008); and (4) the trial court improperly precluded the testimony of two witnesses who would have corroborated his defense of extreme emotional disturbance. We disagree with all of these claims and, accordingly, affirm the judgment of the trial court. Therecordrevealsthefollowingfacts,whichthejury reasonably could have found, and procedural history. In the spring of 2009, the defendant was twenty-one years old and working for a residential construction company. He shared an apartment in Waterbury with several friends and coworkers in a multifamily house onEast LibertyStreet. InJune, 2009,thedefendant quit his job and moved out of the apartment, despite being invited toremain there.The defendantthen movedinto an abandoned factory building in Waterbury where the victim, JoedOlivera, lived. Thetwo men, whohad been friendly since the defendant was fourteen years old, lived on the building’s third floor, which was full of garbage and lacked power and water. They shared a large mattress in that makeshift living space. The relationship between the defendant and the victim rapidly deteriorated. The defendant stated that the victim ‘‘had been making some comments’’ that ‘‘made [him] feel uncomfortable.’’ After the defendant confronted the victim about a perceived sexual advance, the victim told the defendant that he had ejaculated on him one night. Because of his increasing anger over what the victim had told him, on June 8, 2009, the defendant checked into a motel with his girlfriend, Samantha O’Connor. At the motel, the defendant told O’Connor about his discomfort with the victim, and his intention to kill him. The following day, June 9, 2009, the defendant
returned to the factory. In a statement to police, the defendant recounted the events of that day as follows: ‘‘I just hung out with [the victim] all day at the factory. [The victim] said it was safe and he wasn’t going to do anything to me. I told [the victim] that if he had some kind of crush on me then he had to tell me so I could leave. I told [the victim] again that I had a girlfriend and I am not a fag. I asked him if I could trust him and he said ‘yes.’ Eventually I went to sleep . . . in the corner of the bed. But before I went to sleep I had a knife on me. . . . I went to sleep with the knife because if [the victim] tried any of the faggot shit with me I was going to kill him. If I felt a hand in the wrong place I probably would have cut his hand off. . . . I fell asleep and nothing happened that night.’’ Thedefendant’sstatementcontinued:‘‘Forsomereason when I woke up I felt like I was violated, I kept thinking about [the victim] saying he jerked off on me. Every minute that went by, I got madder and madder. [The victim] gave me [$10] and asked me to go [buy] beer . . . . I took the money and . . . bought a [$5] bag of . . . marijuana. I went back to the factory and stayed on the first floor and smoked some of the [marijuana].Iwaspacingbackandforththinkingaboutwhat Iwasgoingtodoto[thevictim].IdecidedthatIneeded to kill [the victim] for what he did to me. I wanted answers from him and I was going to get them before I killed him.’’ The defendant then went upstairs to the third floor to see the victim, who askedwhy he had not purchased any beer. Following an angry exchange, in which the defendant asked the victim why he had ejaculated on him and the victim accused the defendant of being ‘‘selfish and . . . trying to screw him over’’ because of the beer money, the confrontation turned physical. The defendant believed that the victim saw his knife, which thedefendanthadhiddeninthesleeveofhissweatshirt, and the victim started moving toward a second knife that was sticking out of a nearby wall. At that point, the defendant took the second knife out of the wall, grabbed the victim by the shoulder, and tried to throw him down a flight of stairs that led to the second floor. When the victim caught himself in the middle of the staircase, the defendant began to beat him repeatedly with a pair of crutches that the victim used because he had a foot injury. The defendant then tried to push the victim through a hole in the floor at the bottom of the stairs so that the victim would fall down to the first floor. When the victim’s leg and part of his body were in the hole, he pleaded and apologized to the defendant, who continued to yell at him, ‘‘[w]hy did you do this to me . . . I trusted you, you were like a father to me.’’ After the victim climbed out of the hole, the defendant hit him with a metal rod and his fists. The defendant subse
quently forced the victim at knifepoint to go back up the stairs, so he could push him down a larger hole between the third and second floors. The defendant stated that he wanted the victim ‘‘to suffer and be tortured.’’ The defendant then pushed the victim through that hole, causing him to land on wood and debris on the second floor below. As the victim continued to plead with the defendant, the defendant hit him with a fluorescentlighttube,andthenstabbedhimintheneck, chest, shoulder, and head with the dagger more than thirty times until the victim appeared dead.3 The defendant then covered the victim’s body with debris, and gathered his belongings from the third floor. After cleaning himself up and burying his blood covered knife and sweatshirt nearby, the defendant purchased a forty ounce container of Natural Light beer, returned to the factory, and poured some of it on the victim’s body ‘‘because . . . it was his favorite.’’ While sitting on the third floor, the defendant saw a note inviting him and the victim to come to the East Liberty Street house to meet some friends, among whom were Jason Benoit and Gary Peden. The defendant visited his friends at their house, and when Benoit asked the defendant where the victim was, the defendant—with no change in his ordinary demeanor—confessed what he had done. Benoit did not believe the defendant, so the defendant brought him to the factory and showed him the victim’s body. Benoit and the defendant then went to pick up O’Connor at her grandmother’s house in Naugatuck.The defendantalso soughtto retrievehis tools so that Benoit and Corey Bosse, another friend, could pawn them for him. After he confessed to her, O’Connor did not believe what the defendant had done and wanted to see the body, so the defendant again returned to the factory with her, Benoit, and another friend, Dominic Wells. O’Connor and the defendant then went to Saint Mary’s Hospital in Waterbury where the defendant received treatment for cuts to his hand sustained during his attack on the victim. The defendant and O’Connor spent that night at his friends’ house on East Liberty Street. The following day, the defendant decided to leave Connecticut, and he and O’Connor began to walk to her grandmother’s home in Naugatuck. In the meantime, Bosse reported the defendant’s actions to the Waterbury police, who, with the subsequent assistance of Benoit, located the victim’s body on June 11, 2009. Waterbury police officers subsequently apprehended the defendant on his walktoNaugatuck,andhelaterconfessedtoDetectives Michael Slavin and Orlando Rivera. Thestatechargedthedefendantwithmurderinviolationof§ 53a-54a(a),felonymurderinviolationof§ 53a54c, and kidnapping in the second degree in violation of § 53a-94 (a). The case was tried to a jury, and the
defendant did not contest having killed the victim, but asserted a defense of extreme emotional disturbance, which, under § 53a-54a, would reduce his murder convictiontomanslaughterinthefirstdegreeinviolationof General Statutes § 53a-55 (a). The defendant presented thiscaseprimarilythroughtheexperttestimonyofSeth Feuerstein, a psychiatrist, who opined that, because of the defendant’s severe homophobia, his actions at the time of the attack constituted an emotional ‘‘reaction,’’ albeit one without a ‘‘formal psychiatric diagnosis . . . .’’4 Subsequently, the jury returneda verdict finding the defendant guilty on all counts, and that he had not proven the affirmative defense of extreme emotional distress by a preponderance of the evidence. The trial court rendered a judgment of conviction in accordance with the jury’s verdict, and sentenced the defendant to atotaleffectivesentenceofforty-sevenyearsimprisonment.5 This direct appeal followed. On appeal, the defendant claims that: (1) numerous actsofprosecutorialimproprietyduringboththecrossexamination of Feuerstein and closing arguments warrant reversal of his conviction; (2) the trial court improperly denied the defendant’s motions for a mistrial; (3) the evidence is insufficient to support the kidnappingandfelonymurderconvictions;and(4)thetrial courtimproperlyprecludedtwodefensewitnessesfrom testifying. Additional relevant facts and procedural history will be set forth when necessary. I PROSECUTORIAL IMPROPRIETY We begin with the defendant’s claim that the trial prosecutor6 ‘‘committed repeated, flagrant and egregious improprieties’’ during the cross-examination of Feuerstein and closing arguments, which deprived him of a fair trial. We address each specific claim of impropriety in turn.7 The following general background principles guide our analysis. ‘‘[A] claim of prosecutorial impropriety . . . even in the absence of an objection, has constitutional implications and requires a due process analysis underStatev.Williams,204Conn.523,535–40,529A.2d 653 (1987). . . . In analyzing claims of prosecutorial impropriety, we engage in a two step process.8 . . . The two steps are separate and distinct: (1) whether [an impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] [was harmful and thus] caused or contributed to a due process violation is a separate and distinct question . . . .’’ (Citations omitted; footnote added; internal quotation marks omitted.) State v. Wilson, 308 Conn. 412, 434, 64 A.3d 91 (2013). The defendant bears the burden
of satisfying both of these analytical steps. See State v. Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012). In evaluatingwhetheradefendanthascarriedthatburden, we recognize that prosecutorial inquiries or comments that might be ‘‘questionable’’ when ‘‘read in a vacuum’’ often are, indeed, appropriate when ‘‘review[ed] . . . in the context of the entire trial.’’ (Internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 45, 917 A.2d978(2007).Accordingly,wesupplyinthefootnotes relativelylengthytranscriptexcerptsthatarenecessary to put the challenged remarks and questions in their proper context. A Whether the Prosecutor Improperly Used Sarcasm, Personal Attacks, and Appeals to Emotion during Cross-Examination Webeginwiththedefendant’schallengestocertainof theprosecutor’squestionsduringhiscross-examination ofFeuersteinascontainingimpropersarcasm,personal attacks,andemotionalappeals,namely:(1)acharacterization of the defendant as ‘‘ ‘a mean and nasty person who was looking to kill somebody’ ’’; (2) a query that Feuerstein’s‘‘ ‘testimonyhereisnotreallybasedonany hard science’ ’’; (3) creating images of the ‘‘defendant engaged in a murderous fight over $10’’; and (4) a ‘‘sneering comparison of the $10 given by the victim to the defendant to . . . Feuerstein’s hourly rate . . . .’’ In response, the state contends that, viewed in context, these questions were part of a legitimate challenge to the premise and reliability of Feuerstein’s expert testimony, including the exploration of alternative explanations for the defendant’s conduct besides extreme emotionaldistress.Havingreviewedtheseclaimsinthe context of the full record, we conclude that only the ‘‘mean and nasty’’ characterization was improper. ‘‘A basic and proper purpose of cross-examination of an expert is to test that expert’s credibility. . . . Thus, [i]t is well established that an expert witness can beexaminedconcerningthefactualbasisofhis[orher] opinion. . . . Consequently, [i]n cases [in which] the defendant places his [or her] mental status in issue, the basis for a psychiatric expert’s opinion is one of the things that the trier of fact may consider in evaluating the testimony of that expert.’’ (Citations omitted; internalquotationmarksomitted.)Statev.Copas,252Conn. 318, 327, 746 A.2d 761 (2000). ‘‘Though it is manifestly the purpose of cross-examination to expose to the jury facts from which it may gauge the credibility of an expert witness . . . a prosecutor may not express his own opinion of the witness’ credibility, such as by engaging in a line of questioning designed to mock and belittle that witness.’’ (Citations omitted; emphasis omitted.) State v. Wilson, supra, 308 Conn. 437–38. Further, it is well settled that a ‘‘prosecutor may not
appeal to the emotions of the jurors by engaging in character assassination and personal attacks against either the defendant or one of his witnesses. . . . A prosecutor may not ask a question or make a comment during cross-examination that suggests that the defendant has a bad character or propensity for criminal behavior.’’ (Citation omitted.) State v. Warholic, 278 Conn. 354, 389–90, 897 A.2d 569 (2006). ‘‘It must be acknowledgedthatthelinebetweencommentsthatrisk invoking the passions and prejudices of the jurors and those that are permissible rhetorical flourishes is not always easy to draw. The more closely the comments are connected to relevant facts disclosed by the evidence, however, the more likely they will be deemed permissible.’’ State v. Albino, 312 Conn. 763, 773, 97 A.3d 478 (2014). 1 ‘‘Mean and Nasty Person’’ Comment Webeginwiththedefendant’sclaimthattheprosecutor improperly referred to him during cross-examination as a ‘‘mean and nasty person who was looking to kill somebody.’’ Read in context, we agree with the defendant that this reference was an inappropriate personal attack that warranted the trial court’s exercise of its discretion to sustain the defendant’s objection to that question. A review of the transcript demonstrates that the ‘‘mean and nasty’’ comment apparently was posited as an alternative explanation to Feuerstein’s point that the defendant’s act was an uncharacteristic extreme emotional reaction to what he perceived as sexualmisconductbythevictim.9Contrarytothestate’s arguments, this comment was a gratuitous, crudely phrased, and inflammatory description that was not necessary to advance the prosecutor’s otherwise well supported point, namely, that Feuerstein’s assessment was based on an apparently incomplete picture of the defendant’s psychiatric history. Cf. State v. Andrews, 313Conn.266,295–96,96A.3d1199(2014)(prosecutor’s description of defendant as ‘‘ ‘hardened criminal’ ’’ was ‘‘not denigrating and sarcastic but fairly described the defendant in language reflecting his criminal past’’). Theprosecutor’sreferencetothedefendantas‘‘amean and nasty person who was looking to kill somebody’’10 was particularly gratuitous given that it was uncontested that the defendant had committed the homicidal act in this case.11 Accordingly, we conclude that this referencetothedefendantasa‘‘meanandnastyperson whowaslookingtokillsomebody’’constitutedprosecutorial impropriety.12 2 Other Challenged Questions We next turn to the defendant’s challenges to the prosecutor’s (1) suggestion that Feuerstein’s ‘‘ ‘testimony here is not really based on any hard science,’ ’’
(2) representation, during cross-examination, that the ‘‘defendantengagedinamurderousfightover$10,’’and (3) ‘‘sneering comparisonof the $10 givenby the victim to the defendant to . . . Feuerstein’s hourly rate . . . .’’ We first conclude that the prosecutor’s question askingwhetherFeuersteinwouldagree‘‘thatthesubstance of [his] testimony here is not really based on any hard science,’’was,readincontext,notagratuitouspersonal attack on Feuerstein. Rather, that statement was a proper—albeit aggressively phrased—attack on the credibility of Feuerstein’s opinion by questioning him about the methods that yielded the underlying data.13 See State v. Wilson, supra, 308 Conn. 439–41 (concluding that prosecutor’s characterization of inexperienced expert witness’ work on case ‘‘as a ‘maiden voyage’ ’’ wasnotimproperadhominemattack,butalsoconcluding that it was improper name calling for prosecutor to call expert ‘‘ ‘Pete the carpenter’ ’’ or ‘‘ ‘piece of work’ ’’). Contrary to the defendant’s arguments in his reply brief, the statement at issue in this case is not comparable to those contemplated in State v. Maguire, 310 Conn. 535, 556–58, 78 A.3d 828 (2013), wherein we held, inter alia, that it was improper denigration and belittlingoftheroleofdefensecounselfortheprosecutor to describe the defense theory as ‘‘ ‘smoke and mirrors,’ ’’ or to misrepresent the theory of defense as asking the jury to condone child sexual abuse. We similarly disagree with the defendant that the prosecutor improperly made a ‘‘disdainful comparison of $10 to [Feuerstein’s] stated hourly rate,’’ or used cross-examination questions to create the image of the ‘‘defendant engaged in a murderous fight over $10 . . . .’’ In context, those questions appear intended to highlight the importance of $10 to the defendant and thevictim,whowerehomelessmen,andmakethepoint that a relatively insignificant amount of money could motivate a homicide, thus providing an alternative explanation for Feuerstein’s theory that the killing was an emotional response to sexual advances by the victim.14 Nothing in this line of questions referred to Feuerstein’scompensationspecifically,butrather,simply highlighted the fact that the same sum of money mightmeandifferentthingsto personsofdifferenteconomic circumstances. In sum, these questions—although abrasively worded—are rooted in the evidence in the record and do not begin to approach the egregiousness of those at issue in State v. Maguire, supra, 310 Conn. 535. We conclude, therefore, that these questions did not amount to an improper personal attack on Feuerstein. B The Prosecutor’s Disregard of Certain Court Orders The defendant next claims that the prosecutor
improperly flouted numerous orders of the trial court while cross-examining Feuerstein. Specifically, the defendantchallengestheprosecutor’sapparent:(1)reference in front of the jury to the trial court’s ruling holdingcertainofthedefendant’smedicalrecordsinadmissible for purposes of cross-examination; (2) disregard of the trial court’s admonitions to phrase his questions to Feuerstein as hypotheticals, rather than assertions of fact; and (3) violation of a court order requiring the disclosure to the defendant of all uncharged misconduct evidence. It‘‘iswellsettledthatprosecutorialdisobedienceofa trialcourtorder,evenonethattheprosecutorconsiders legallyincorrect,constitutesimproperconduct.’’15 State v. Ortiz, 280 Conn. 686, 704, 911 A.2d 1055 (2006). In manycases,however,thisblackletterprincipleiseasier stated than applied. A prosecutor’s advocacy obligations may occasionally drive him or her close to the line drawn by a trial court order regarding the use of certain evidence. See, e.g., State v. Warholic, supra, 278 Conn. 406–407 (prosecutor did not violate order precluding questions about substance abuse treatment, despite fact his questions about substance abuse itself resulted in warning from trial court that ‘‘this question concerning prejudicial and collateral matters put him ‘ahalfastepawayfromamistrial’ ’’);State v.Williams, 102 Conn. App. 168, 181, 926 A.2d 7 (‘‘[a]lthough the prosecutor may have gone to the edge of the court’s order, we cannot say on the basis of the record before us that he deliberately violated the ruling or that he intendedtounderminetheauthorityofthecourt’’),cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). Even when it is determined that a prosecutor has breached a trial court order, it can be difficult to distinguish between a mere evidentiary misstep and a potential due process violation. Our cases do, however, provide some guiding principles. Not every misstep by a prosecutor that exceeds the bounds of a trial court order rises to the level of prosecutorial impropriety that implicates a defendant’s due process rights, thus requiring resort to the second step in the prosecutorial impropriety analysis. See State v. Santiago, 269 Conn. 726, 742, 850 A.2d 199 (2004) (‘‘it is the severity of the misconduct, considered in the context of the specific factsandcircumstancesofaparticularcase,asopposed to the intrinsic nature of the impropriety, that determines whether an impropriety is evidentiary or of constitutional magnitude’’); accord State v. Gibson, 302 Conn. 653, 663 n.4, 31 A.3d 346 (2011) (acknowledging that ‘‘there may be some overlap between the factors that the reviewing court considers when determining whether the prosecutor’s conduct was improper and those that it considers when conducting its constitutional analysis’’). Whether a prosecutorial question or comment that
runsafoulofatrialcourtorderimplicatesadefendant’s dueprocessrightsisacasespecificdetermination.This determination turns on the degree to which the breach underminesatrialcourt’srulingthatprotectstheintegrity of the fact-finding process by restricting the admission of unreliable or unduly prejudicial evidence. See State v. Maguire, supra, 310 Conn. 558–60 (reference in objection to ‘‘ ‘full interview, and that’s not in evidence’ ’’ in questioning expert about inconsistencies in victim’s statement undermined decision for prosecutor and defendant to redact irrelevant portions of forensic interview transcript); State v. Payne, supra, 303 Conn. 565–66 (improper for prosecutor to link murder and jury tampering cases in summations when trial court stated it would not indicate that cases were legally related or permit prosecutor to argue that jury tampering was consciousness of guilt); cf. State v. Ubaldi, 190 Conn. 559, 573–74, 462 A.2d 1001 (unfair remark during summations asking jury to draw negative inference from witness’ absence that ‘‘implied that the defendant was obligated to produce a witness whose invocation ofhisconstitutionalrightmade itimpossibletopresent his testimony,’’ particularly when that witness ‘‘had been identified as a ‘bookie,’ ’’ thus ‘‘undermin[ing] the authority of the trial court’s ruling that such a matter should not be considered by the jury’’), cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983).16 To this end, a comment or question is more likely to rise to the level of constitutional impropriety when it raises the specter of a prosecutor improperly prejudicing the jury by interjecting his or her personal knowledge of facts beyond the record. See State v. Maguire, supra, 558–60. With this standard in mind, we turn to the defendant’s specific claims of violations. 1 Reference to Medical Records Not in Evidence RelyingonStatev.Maguire,supra,310Conn.535,the defendantfirstcontendsthattheprosecutorimproperly askedaquestionthatincludeda‘‘stagewhisper’’17 about the trial court’s ruling that had deemed certain of the defendant’s medical records inadmissible for purposes ofcross-examination.Specifically,thechallengedquestion by the prosecutor included this preface: ‘‘Okay. And now, the records aren’t allowed to come in, but having . . . .’’ The state ‘‘does not dispute that this comment should not have been made,’’ but contends that ‘‘the record is inadequate to determine whether this was truly an instance of prosecutorial impropriety or . . . merely a matter of an improperly phrased questionand,therefore,simplyaclaimofevidentiaryerror.’’ The state also contends that the remark was a ‘‘prefatory comment’’ that, when read in context, did not convey to the jury any ‘‘ ‘special knowledge’ ’’ about the content of the medical records. Moreover, the state contends that the jury was aware that the records had
notbeenadmittedintoevidencebecauseitwaspresent whenthestatemadetheoriginalmotion.Weagreewith the defendant, and conclude that this comment was improper—albeit not as singularly egregious as the comment identified in Maguire. The record reveals the following additional relevant facts and procedural history. The trial court declined to admit the defendant’s medical records into evidence on the ground that they were inadmissible under § 7-4 (b) of the Connecticut Code of Evidence because they were not facts relied upon by Feuerstein in forming his opinion. The prosecutor then asked Feuerstein: ‘‘[The Prosecutor]: I’m asking you as a health-care professional, isn’t it a good thingto get records that are very recent in timewhen trying to evaluate somebody’s mental state? ‘‘[Feuerstein]: Yes. ‘‘[TheProsecutor]:Okay.Andnow,therecordsaren’t allowed to come in, but having— ‘‘[Defense Counsel]: I object, Your Honor. Ask that [it] be stricken. ‘‘TheCourt:Thejury shoulddisregardthatcomment. ‘‘[The Prosecutor]: Without talking to us about the specifics of what’s in the records, are there items in there that you would have considered when rendering your opinion?’’18 (Emphasis added.) Weagreewiththedefendantthatthiscomment,albeit prefatory, raisedthe specterof a‘‘stage whisper’’about materials contained in the medical records that the prosecutorknowsmighthavesomebearingonthecase, but that the jury—for whatever reason—is not allowed to see. We recently held similar comments to be improper in State v. Maguire, supra, 310 Conn. 559, whereinaprosecutormadeacommentduringanobjection to the defendant’s cross-examination of a forensic interviewer about inconsistencies in the victim’s statement, which referred to ‘‘ ‘the full interview, and that’s not in evidence.’ ’’ We agreed with the defendant that this remark ‘‘indicat[ed] that redacted portions of the transcript of the forensic interview refuted defense counsel’s assertion that [the interviewer] did not challenge the victim with respect to inconsistencies in the victim’s claims against the defendant . . . .’’ Id., 558. Weobservedthatthiscomment,amongotherimproprieties committed by the prosecutor, ‘‘conveyed to the jury that the defendant or defense counsel was not to be trusted. As this court previously has stated, the prosecutor’s opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state’s] judgment rather than its own view of the evidence. . . . Moreover,becausethejuryisawarethattheprosecutor has prepared and presented the case and consequently . . . may have access to matters not in evidence . . .
it is likely to infer that such matters precipitated the personalopinions.’’(Internalquotationmarksomitted.) Id., 562. Ultimately, on the record in Maguire, we concluded that this impropriety combined with others to deprive the defendant of his right to a fair trial. See id., 560–62. Accordingly, following Maguire, we conclude that this comment was an impropriety that will require ustodeterminewhetheritviolatedthedefendant’sright to a fair trial. 2 Disregard of Hypothetical Questions Ruling The defendant next argues that the prosecutor improperly questioned Feuerstein about whether people kill each other over seemingly minor triggers like $10 or parking spaces. See footnote 14 of this opinion. Specifically, the defendant, in his reply brief, appears tocontendthatthesequestions:(1)violatedatrialcourt order against hypothetical questions not based on evidence inthe recordor thedefendant’s medicalrecords; and (2) were not properly phrased as hypotheticals. In response, the state contends that, to the extent that the prosecutor violated the trial court’s ruling concerning thequestioningofFeuerstein,thoseviolationswerethe inadvertentproductofgoodfaithattemptstoformulate meaningful questions in response to a confusing and legally erroneous interpretation of § 7-4 (c) of the Connecticut Code of Evidence. Citing State v. King, 289 Conn. 496, 958 A.2d 731 (2008), the state observes that the ‘‘distinction between proper and improper questioning is often a subtle one.’’ We agree with the state, and conclude that, to the extent that the prosecutor breached the trial court’s evidentiary ruling concerning the use of hypothetical questions, his questioning did not rise to the level of prosecutorial impropriety that implicates the defendant’s due process rights. The record reveals the following relevant facts and procedural history. Following a chambers conference and subsequent argument on the record, the trial court addressed the use of ‘‘hypothetical questions asked on cross-examination’’ and ruled that, ‘‘[w]hile on direct examination,ahypotheticalquestionneedstobebased on facts in evidence. A greater latitude may be submitted on cross-examination. Accordingly, subject to the court’sdiscretioninthecross-examinationofanexpert, any fact may be assumed in a hypothetical question to test the skill, learning, or accuracy of the expert or to ascertain the reasonableness . . . of the expert’s opinion. The citation is Floyd v. Fruit Industries, Inc., [144 Conn. 659, 666, 136 A.2d 918 (1957)].19 So the crossexamination of the expert does not have to include facts that are . . . in evidence in general terms. * * * ‘‘Soagain,withrespecttothehypotheticalquestions, as set out in the case law, the hypothetical question
because it’s cross-examination can’t have facts other than those that are not . . . in evidence as part of the hypothetical.’’ (Footnote added.) Following an objection by the defendant, the trial courtlaterclarifiedthat,under thatruling,theprosecutor was ‘‘not to . . . put into hypotheticals facts that areeither notinevidenceor partofthe medicalrecord. I heard nothing about killing someone for a spot— parking—that is in any way related to this case. Do you understand?’’ Therecorddisclosesthattheatmosphereinthecourtroom at that point may have been tense, insofar as the trial judge deemed it necessary to admonish the prosecutor about raising his voice in court, leading the prosecutor to apologize and confirm the scope of the clarified order.20 Nevertheless, we conclude that the prosecutor’s questions, although phrased in apparent violation of the court’s evidentiary ruling, did not rise to the level of an impropriety that is grist for the due process mill. The initial ruling that the trial court put ontherecordwasnotclear.Untilthetrialcourt’ssubsequent clarification emphasizing its restriction of hypotheticals to those rooted in facts either in evidence or contained in the defendant’s medical records, that initial order contained somewhat confusing double negatives and, indeed, implicitly invited the use of extrarecordfactsinhypotheticals—whichwouldnotcontravene Floyd, which was the basis for the trial court’s ruling. The fact that the prosecutor’s questions about small amounts of money or other trivial matters, such as parking spots, serving as a motive for killing led to a sustained objection because they crossed the initially hazy line drawn by the trial court does not raise those questions to the level of prosecutorial impropriety. See State v. Sherman, 38 Conn. App. 371, 386, 662 A.2d 767 (concluding that prosecutor’s questions ‘‘did not directly undermine the court’s ruling,’’ despite fact that trial court ‘‘sustain[ed] the defendant’s objection to the questions, it did so on the theory that the questions were similar to those meant to be precluded by the motion in limine,’’ particularly because trial court gave prompt curative instruction to jury), cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). Further, to the extent that the defendant attacks the prosecutor’s failure to indicate specifically that his questionswerehypotheticalinnature,weconcludethat this was an error of form that did not undermine a rulingprotectingagainsttheadmissionofevidencethat the trial court had specifically identified as substantively unreliable or unduly prejudicial. Accordingly, we conclude that these erroneously phrased questions did not rise to the level of constitutional prosecutorial impropriety. 3
Breach of Orders with Respect to Uncharged Misconduct Evidence The defendant next claims that the prosecutor improperly attempted to impeach Feuerstein’s testimony with ‘‘several instances of misconduct [that] had not been disclosed in response to the defendant’s pretrial pleading, and for which there was no basis in the record.’’Theonlymisconductthatreceivesanysubstantive briefing, however, is the defendant’s claim that the prosecutor improperly introduced evidence of his threat to stab someone 100 times with a knife, despite a ruling to the contrary. In an abundance of caution, and because they are intertwined, we also address the defendant’s apparent challenge to cross-examination questions that asked Feuerstein whether he was aware of (1) the defendant’s psychiatric hospitalization approximately one month before the homicide in this case ‘‘for threatening to kill or because he thought he was going to kill’’ O’Connor, and (2) an incident when the defendant’s friends took a knife away from him because they were afraid he was going to hurt O’Connor. The defendant posits that, based on an initial preclusive order regarding the 100 times threat, these references were inappropriate because the prosecutor ‘‘hadbeenwarnedwellinadvancethatthesereferences were inadmissible.’’ The defendant also argues that the state failed to comply with an order granting the defendant’s motion directing the state to disclose the uncharged misconduct that it intended to use. In response, the state argues that the trial court’s initial preclusive ruling was limited to the state’s casein-chief, rather than for impeachment purposes. The state also contends that the prosecutor’s use of this uncharged misconduct evidence for impeachment purposes did not violate the terms of the court’s order on the defendant’s motion requiring the disclosure of uncharged misconduct evidence, which by way of its citation to State v. Acquin, 34 Conn. Supp. 152, 153, 381 A.2d 239 (1977), extended only to uncharged misconductutilizedtoproveguilt,ratherthanforimpeachment purposes. Contending that this misconduct did not become relevant until Feuerstein testified that the defendant had ‘‘ ‘no significant history of violence,’ ’’ the state also argues that the late disclosure by the defense of the voluminous medical records that had been reviewed by Feuerstein led to confusion on the part of the prosecutorabout whether the knife incident was included in those records, and thus, was germane for cross-examination. We agree with the state, and conclude that any ostensible failure to comply with orders with respect to uncharged misconduct evidence did not rise to the level of constitutional prosecutorial impropriety. We begin by reviewing the trial court’s orders with respect to uncharged misconduct evidence. The defen
dant filed a pretrial motion on November 28, 2011, ‘‘to require notice of uncharged misconduct evidence,’’ seeking that ‘‘the state be ordered to provide defense counselwithawrittenstatementlistingthenature,date and place of any and all criminal offenses or acts of misconduct . . . .’’ (Citation omitted.) As legal authority for the motion, the defendant cited article first, § 8, of the Connecticut constitution, Practice Book § 4012,21 and State v. Acquin, supra,34 Conn. Supp. 152. On December14,2011,thestatefiledanoticeofuncharged misconduct stating, inter alia, that it might seek to admit: (1) ‘‘violent acts of the defendant . . . detailed’’ in therecords disclosed bythe defendant asrelevant to the defendant’s psychiatric defense; and (2) statements made in the presence of Peden in which the defendant ‘‘threaten[ed] to stab someone ‘[100] times.’ ’’ When Peden testified during the state’s case-in-chief, the prosecutor offered as uncharged misconduct evidence Peden’s observation, recorded in his statement to the police, that, approximately one week before the homicide in this case, the defendant had waved a large knifearoundandsaidthat:‘‘ ‘Ijust[wantto]stabsomeone [100] times.’ ’’ After some argument centered on whetherthatconductconstitutedacrime,thetrialcourt ruledthatitwouldnotpermittheprosecutortoquestion Peden about that incident because it was not ‘‘misconduct’’ subject to § 4-5 (b) of the Connecticut Code of Evidence. Subsequently, while cross-examining Feuerstein, the prosecutoraskedhim,interalia, whetherhewasaware of (1) the defendant’s psychiatric hospitalization approximately one month before the homicide in this case ‘‘for threatening to kill or because he thought he wasgoingtokill’’O’Connor,and(2)thatthedefendant’s friends hadto takea knifeaway from himbecause they wereafraidhewasgoingtohurtO’Connor.Seefootnote 9 of this opinion. This line of questioning led to a multifaceted objection from the defendant.22 Having reviewed the parties’ briefs and the record, weconcludethatthisclaimisreallyadiscoverydispute thatdoesnotrisetothelevelofconstitutionalimpropriety. First, there is no constitutional right to the disclosure of uncharged misconduct evidence, which is inculpatory in nature. See, e.g., State v. Colon, 71 Conn. App. 217, 241, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). Second, our review of the record demonstrated that the state had indicated in its disclosurethatitwouldrely onepisodesofmisconduct contained in the medical records reviewed by Feuerstein,andtheprosecutor’sbeliefthattheepisodes at issue were reflected in those records. Further, given the citation to State v. Acquin, supra, 34 Conn. Supp. 152,inthedefendant’smotionfordisclosure,theprosecutor’s argument that he was not required to disclose materials beyond those used in the case-in-chief was
not frivolous or unreasonable. See id., 152–53 (noting that motion at issue in Acquin sought disclosure of uncharged misconduct evidence ‘‘other than those charged in the present information and those offered forimpeachmentpurposes,whichthestatewillattempt to prove at the trial’’). Finally, even after extensive argument, andthe denialof amotion for amistrial that, inpart,wasbasedonthedefendant’sclaimsofuntimely disclosure of this evidence, the trial court did not sanctionthestateorindicateanydispleasurewiththedisclosure provided. Instead, the trial court, focusing on its order that the questioning of Feuerstein be conducted through the use of hypotheticals, instructed the jury that the questions were not evidence and that the jury had ‘‘heard no evidence that the defendant threatened to kill or stab [O’Connor].’’ Accordingly, given the lack of clarity in the record on this point, we conclude that the defendant has failed to establish that any breach by the prosecutor with respect to the disclosure of uncharged misconduct rose to the level of constitutional impropriety. C Closing Argument Impropriety Finally, the defendant challenges certain aspects of thestate’sclosingandrebuttalarguments.Inparticular, the defendant challenges the prosecutor’s arguments that: (1) ‘‘common sense tells you that the version of events that [the defendant] gives just doesn’t make sense.There’snothingcorroboratinghisstatementthat there were unwanted sexual advances’’; and (2) the ‘‘defendant in the beginning tried to immediately set up a motive or an excuse as to why it was that he committed thiscrime. Whathe saysdoes not makesense.’’ The defendant argues that these comments were ‘‘improper rhetoric [that] was a direct pick up from the prosecutor’s sarcasm, incredulity, and disdain during crossexamination’’ that amounted to an ‘‘unfair [appeal] to emotion and prejudice.’’23 (Internal quotation marks omitted.) In response, the state relies on State v. Long, 293 Conn. 31, 975 A.2d 660 (2009), and contends that thesestatementswerenotimproperbecauseaprosecutor may argue credibility and appeal to the jurors’ commonsenseduringsummations,aslongasthearguments are rooted in the evidence in the record. We agree with the state, and conclude that the prosecutor did not commit impropriety during closing arguments. ‘‘The parameters of the term zealous advocacy are . . . well settled. . . . [A] prosecutor may not express his [or her] own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Put another way, the prosecutor’s opinioncarrieswithittheimprimaturofthe[state]andmay
induce the jury to trust the [state’s] judgment rather than its own view of the evidence. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence . . . it is likely to infer that such matters precipitated the personal opinions. . . . However, [i]t is not improper for the prosecutor to comment upon the evidence presented attrialandtoarguetheinferencesthatthejurorsmight draw therefrom . . . . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge,ontheotherhand.’’(Citationomitted;internalquotationmarksomitted.)Statev.Ciullo,314Conn. 28, 40–41, 100 A.3d 779 (2014). Further, it ‘‘is well established that a prosecutor may argue about the credibility of witnesses, as long as her assertions are based on evidence presented at trial and reasonable inferences that jurors might draw therefrom. . . . Moreover, [i]n deciding cases . . . [j]urors arenotexpectedtolayasidemattersofcommonknowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel to appeal to [the jurors’] common sense in closing remarks. . . . Our jurisprudencepermitsthesestatementsfromtheprosecution, if properly presented . . . .’’ (Citation omitted; internal quotation marks omitted.) Id., 45–46; see also, e.g.,Statev.Long,supra,293Conn.41–42.Theprosecutor may also make these arguments with respect to the credibility of statements by the defendant himself, so long as they are rooted in the evidence at trial. See, e.g., State v. Medrano, 308 Conn. 604, 616–19, 65 A.3d 503 (2013) (prosecutor properly argued defendant was not credible because of evidence that he had larceny conviction and had lied on job application, and had motive to lie); see also State v. Smalls, 78 Conn. App. 535, 542–43, 827 A.2d 784 (prosecutor may properly commentondefendant’s‘‘voluntarypretrialstatements if the defendant relies on those statements for a defense’’ and comment does not burden defendant’s right not to testify), cert. denied, 266 Conn. 931, 837 A.2d 806 (2003). Finally, in evaluating claims of impropriety during summation, we recognize that ‘‘the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered . . . .’’ (Internal quotation marks omitted.) State v. Albino, supra, 312 Conn. 772. ‘‘When making closing arguments to the jury . . . [c]ounsel must be allowed a generous latitude in argument,as thelimitsof legitimateargumentand faircomment 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,aprosecutormayarguethestate’scaseforcefully, [providedtheargumentis]fairandbaseduponthefacts in evidence and the reasonable inferences to be drawn therefrom.’’ (Internal quotation marks omitted.) State v. Medrano, supra, 308 Conn. 611. Read in context, we conclude that the prosecutor’s arguments that the defendant’s statement and theory did not ‘‘make sense’’ were not improper. Specifically, the prosecutor cited ample evidence from the trial record to establish that the defendant was not homophobic—let alone violently so. The prosecutor, therefore, properly argued that the defendant’s extreme emotionaldisturbancedefense,asrootedindeephomophobia, ‘‘did not make sense’’ given the evidence in the record ‘‘that he acted exactly the opposite of someone whowouldbehomophobic,’’bymaintainingfriendships with openly gay men and by not reacting negatively to a same sex sexual encounter that he had at a party. See footnote 31 of this opinion. Accordingly, we conclude that the challenged remarks during closing argument were not prosecutorial impropriety. D Williams Due Process Analysis Havingidentifiedtwoinstancesofimproprietyduring cross-examination, namely, the prosecutor’s description of the defendant as a ‘‘mean and nasty person who was looking to kill somebody,’’ and his reference to the records that the trial court had declined to admit; see parts I A 1 and I B 1 of this opinion; we now determine whether they violated the defendant’s right to a fair trial. ‘‘[O]ur determination of whether any improper conduct by the [prosecutor] violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, supra, 204 Conn. 540, with due consideration of whether that [impropriety] was objected to at trial. . . . These factors include: the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the impropriety to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. . . . ‘‘Werecentlyclarifiedthatwhenadefendantraiseson appealaclaimthatimproperremarksbytheprosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show, not only that the remarks were improper, but also that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of dueprocess.’’(Internalquotationmarksomitted.)State v. Ciullo, supra, 314 Conn. 57–58. Reviewing the six Williams factors, we agree with
thestateandconcludethatthetwoidentifiedimproprieties did not deprive the defendant of his right to a fair trial. We acknowledge that the defendant did nothing to invite them, and, in fact, thought both significant enough to warrant both an objection when made and later serve as a partial basis for a mistrial motion. See also part II of this opinion. Nevertheless, these two improprieties were confined to the cross-examination ofFeuersteinand,therefore,werenotfrequent.Second, they also were not particularly severe, especially when contrasted with the more vituperative language considered in some of our other cases; see footnote 10 of this opinion; and the more focused stage whisper at issue in State v. Maguire, supra, 310 Conn. 558–60, wherein the prosecutor directly highlighted the existence of redacted portions of records while questioning an expert about inconsistencies in those records that had been admitted into evidence. Third, the improprieties were not particularly central to the state’s case against the defendant or its attempt to refute the special defense—the prosecutor did not address Feuerstein’s testimony at all during closing or rebuttal arguments. Fourth, the state’s case against the defendant as explained during summations—including with regard to responding to the defendant’s extreme emotional disturbance defense—was very strong and rooted largelyinthedefendant’sownstatementandthegravity and severity of the victim’s injuries. Finally, to the extent there was any harm, it was mitigated by the trial court’s prompt curative instruction directing the jury todisregardtheimproperquestions,whichwepresume the jury followed. See, e.g., State v. Payne, supra, 303 Conn. 567–68; State v. Warholic, supra, 278 Conn. 404. Accordingly, we conclude that these two isolated instances of prosecutorial impropriety did not deprive the defendant of a fair trial and, therefore, do not warrant reversal of this conviction.24 II MISTRIAL MOTIONS We next address the defendant’s claim that the trial court improperly denied his two motions for a mistrial based on the improper presentation of uncharged misconduct evidence. The defendant contends that the trial court should have granted his motions for a mistrial upon: (1) a spontaneous statement by Richard Innaimo, a Waterbury police detective, that he had utilized ‘‘a booking photo[graph] with a physical description from a previous arrest’’ to aid in apprehending the defendant; and (2) the prosecutor’s use of assertions of fact, rather than hypothetical questions, to crossexamine Feuerstein about prior misconduct by the defendant such as threats to kill O’Connor and his friends taking a knife away from him.25 In response, the state argues that the trial court did not abuse its discretion in determining that striking the challenged
evidence and issuing a curative instruction was an adequate remedy short of declaring a mistrial. We agree with the state, and conclude that the trial court did not abuseitsdiscretionbydenyingthedefendant’smotions for a mistrial. The record reveals the following additional relevant facts and procedural history.26 Innaimo testified that he had been assigned to assist with the apprehension of the defendant by the Waterbury police. The prosecutor asked Innaimo whether he had ‘‘look[ed] at any type ofphotographorlearn[ed]anyotherbiologicalinformation about’’ the defendant prior to going out to look for him. Innaimo then responded that he ‘‘had a booking photo[graph] with a physical description from a prior arrest.’’ After Innaimo testified about the events concerning the apprehension of the defendant, the defendantaskedtobeheardoutsidethepresenceofthejury, and moved for a mistrial, arguing that the ‘‘inquiry and response in regards to the identification of the defendant through a booking photo[graph] from a previous arrest is completely inappropriate.’’ The defendant stated that he had not objected at the time because he did not want to draw more attention to Innaimo’s comment. In response, the prosecutor argued that she had not anticipated Innaimo’s answer, but contended that prejudice would be mitigated by testimony anticipated from Feuerstein regarding the defendant’s prior larceny arrest. After additional discussion, the trial court denied the defendant’s motion for a mistrial, deeming it a ‘‘severe sanction’’ that was not warranted in light of the availability of a curative instruction, to be given both at that time and reiterated later during the final charge.27 Subsequently, an evidentiary dispute arose about the potential introduction of evidence of uncharged misconductduringthecross-examinationofFeuersteinvia questions phrased as assertions of fact, rather than as hypotheticals. See part I B 2 of this opinion. Defense counselrenewedhispreviousmotionforamistrialarising from Innaimo’s reference to a booking photograph, and stated, ‘‘at this point, the court is not just looking at that one isolated statement,’’ arguing that ‘‘it’s the cumulative nature of a variety of things that have occurredthat,inmyopinion,arebeyondanyinstruction thecourtcangive’’withrespecttopreservingthedefendant’s right to due process and fundamental fairness. Thedefendantagainchallengedtheprosecutor’s‘‘mean andnastyperson’’question;seepartIA1ofthisopinion; and the phrasing of questions using assertions of fact rather than hypotheticals, in particular the questions aboutthedefendant’sthreatstowardO’Connor,andthe fact that his friends had to take his knife away. In response, the prosecutor argued that the ‘‘mean and nasty person’’ comment was an alternative theory for the homicide, and that the evidence of the defendant’s threateningbehaviorwasrootedinhismedicalrecords.
Afterrulingonthehypotheticalphrasing,thetrialcourt denied the mistrial motion, stating that the jury would beinstructedthattheprosecutor’sstatementswerenot evidence, and those references would be stricken from the record. The trial court then instructed the jury accordingly.28 ‘‘The standard for review of an action upon a motion for a mistrial is well established. While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. . . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whetheracertainoccurrenceisprejudicialtothedefendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.’’ (Internal quotation marks omitted.) State v. Ortiz, supra, 280 Conn. 702. Further, in ‘‘reviewing a claim of abuse of discretion, we have stated that [d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. . . . Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appearstohavebeendone,reversalisrequired.’’(Internal quotation marks omitted.) Id., 703. As previously discussed in part I B 2 of this opinion, we conclude that the prosecutor’s breach of the trial court’s evidentiary ruling by questioning Feuerstein using assertions of fact, rather than hypotheticals, to describe certain instances of prior misconduct, did not implicate the defendant’s due process rights. We also conclude that the brief reference to the booking photograph, while unfortunate, was not excessively prejudicial because neither the prosecutor nor Innaimo dwelt on that point, and there was mention of the crime that formed the basis for the arrest. The trial court, therefore, reasonably could have concluded that any prejudice to the defendant, including that created by the ‘‘meanandnastyperson’’comment,wouldbeaddressed adequately by a curative instruction. Accordingly, we concludethatthetrialcourtdidnotabuseitsdiscretion by denying the defendant’s various motions for a
mistrial.
III SUFFICIENCY OF THE EVIDENCE We next address the defendant’s claim that there is insufficient evidence to support his conviction for kidnapping in the second degree, which serves as the predicate for his felony murder conviction. Relying on, inter alia, State v. Salamon, supra, 287 Conn. 509, and State v. Ward, 306 Conn. 718, 51 A.3d 970 (2012), the defendant contends that there is insufficient evidence to establish beyond a reasonable doubt that there was confinement or movement of the victim beyond that incidental to the commission of another crime, in this case, murder.29 In response, the state, citing State v. Ward,supra,718,and Statev. Miranda,145Conn.App. 494, 75 A.3d 742, cert. granted on other grounds, 310 Conn. 942, 79 A.3d 894, cert. denied, 310 Conn. 942, 79 A.3d 893 (2013), contends that the kidnapping conviction is supported by the defendant’s admission that he wanted to torture the victim, as evinced by the length of confinement and his acts of moving the victim to numerouslocationswithinthefactorybeforeultimately killing him. We agree with the state, and conclude that the defendant’s kidnapping conviction is supported by sufficient evidence. ‘‘In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.’’ (Internal quotation marks omitted.) State v. Gonzalez, 311Conn. 408,419,87 A.3d 1101 (2014); see also id., 419–20 (setting forth more detailed recitation of standard). ‘‘[I]n State v. Salamon, supra, 287 Conn. 542, this court reconsidered its prior interpretation and constructionofthekidnappingstatutesandconcludedthat [o]ur legislature . . . intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnappinginconjunctionwithanothercrime,adefendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime. ‘‘Although our holding in Salamon constituted a significantchangewithrespecttoourinterpretationofthe kidnapping statutes, we emphasized that [o]ur holding does not represent a complete refutation of the principlesestablishedbyourpriorkidnappingjurisprudence.
First, in order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement. When that confinement or movement is merely incidental to the commission of another crime, however, the confinementormovementmusthaveexceededthatwhichwas necessary to commit the other crime. [T]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts . . . . In other words, the test . . . todeterminewhether[the]confinementsormovements involved [were] such that kidnapping may also be chargedandprosecutedwhenanoffenseseparatefrom kidnapping has occurred asks whether the confinement,movement, ordetentionwasmerely incidentalto the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.’’ (Internal quotation marks omitted.) State v. Ward, supra, 306 Conn. 731–32; see also State v. Salamon, supra, 287 Conn. 547–48 (describing factors jury should consider in determining whether ‘‘restraint was not merelyincidental tothe commissionof someother, separate crime’’ [emphasis omitted]). Baseduponthefactsintherecordandthereasonable inferences that they support, we conclude that sufficient evidence underlies the defendant’s conviction of second degree kidnapping. Consistent with the defendant’s desire that the victim ‘‘suffer and be tortured,’’ there was sufficient evidence under which the jury could have found beyond a reasonable doubt that the defendant’s movement and confinement of the victim was not merely incidental to the crime of murder, insofar as he engaged in conduct beyond that necessary to holdthevictimdownandstabhimtodeath.Specifically, in a protracted altercation, the defendant prevented the victim’s escape from the attack and forced him at knifepoint to move among the various floors of the factorybuildingbeforetheyendeduponthethirdfloor, where the defendant forced the victim through the larger hole in the floor, beat him with a broken fluorescent light tube, and stabbed him to death. The nature and length of this encounter across multiple locations in the factory supports the jury’s verdict convicting the defendant of second degree kidnapping. See State v. Ward, supra, 306 Conn. 736–39 (sufficient evidence of kidnapping when defendant dragged victim at knifepoint from kitchen to bedroom where he moved her from bed to floor for sexual assault because that act madevictim’s‘‘possibilityofescapeevenmoreremote,’’ andsexualassaultwasbriefpartofentirefifteenminute encounter); State v. Salamon, supra, 287 Conn. 549–50 (defendant not entitled to acquittal of kidnapping charge when he subdued victim and forcibly held her down for at least five minutes in addition to acts of assaulting her by striking her and forcing his fingers
into her mouth); State v. Miranda, supra, 145 Conn. App.513(sufficientevidenceofkidnappingwhenvictim wasmovedfromsecondfloortofirstfloorofapartment where murder took place, with victim’s bruises and lacerations supporting inference that ‘‘the defendant, before committing the murder, subjected [the victim] toaperiodofphysicalabuse,whichrequiredadditional confinement’’).Accordingly,weconcludethatthejury’s verdict that the defendant committed second degree kidnapping was supported by sufficient evidence. IV PRECLUSION OF DEFENSE WITNESSES The defendant’s final claim is that the trial court improperly barred the testimony of two witnesses who would have corroborated aspects of his extreme emotionaldisturbancedefense,specifically:(1)Christopher Veader, the defendant’s brother, who would have testified about child sexual abuse in their family; and (2) Rene Ingram, who would have testified to a same sex sexual encounter with the victim. The defendant contends that the trial court’s order: (1) was an improper grantofanoralmotioninlimineinviolationofPractice Book § 42-15;30 and (2) ‘‘emasculated the defendant’s defense and his constitutional rights’’ by barring ‘‘vital corroborative testimony . . . .’’ In response, the state argues, inter alia, that:(1) the defendant’s § 42-15 claim is not preserved; (2) his constitutional claim is inadequately briefed;and (3)the trialcourt reasonablycould have barred the testimony of both witnesses as irrelevant or cumulative. We agree with the state that the defendant’sevidentiaryclaimsarenotreviewable,inadequately briefed, or otherwise lack merit. The record reveals the following additional relevant factsandproceduralhistory.Duringtrial,thedefendant advised the trial court that the anticipated testimony of Veader and Ingram presented issues to be resolved outside the presence of the jury. The defendant profferedVeadertotestifythathehadbeensexuallyabused by their stepfather in a place and manner similar to that endured by the defendant, and was aware that the stepfather had abused the defendant as well. The state objected to Veader’s testimony as hearsay because he had not witnessed the molestation of the defendant, as irrelevant given that the defendant did not personally see his abuse as contributing to the homicide, and as cumulative of the testimony of Feuerstein and O’Connor. The defendant argued in response that he would not elicit hearsay testimony from Veader and that his sexualabusewas‘‘reasonablypartofwhat[Feuerstein] considered.’’ After Veader testified in an offer of proof, the trial court excluded Veader’s testimony as both irrelevantandhearsaynotsubjecttotheresidualexception; see Conn. Code Evid. § 8-9; because it was neither necessary nor supported by ‘‘equivalent guarantees of trustworthiness . . . .’’
The defendant proffered Ingram to testify about a samesexsexualencounterwith thevictimafteraparty in 1991, eighteen years prior to the victim’s death. The defendant argued that Ingram’s testimony would establish that the victim was gay and had solicited sexual acts, thus supporting the theory of his defense. After Ingram testified in an offer of proof, the trial court excluded that testimony, concluding that the incident was ‘‘too remote in time’’ and ‘‘could lead to confusion on the part of the jury.’’ The defendant’s claims arising from the exclusion of the testimony of Veader and Ingram warrant only brief discussion.First,weagreewiththestatethatthedefendant’sclaimthatthetrialcourtimproperlygrantedwhat was in essence an oral motion in limine in violation of Practice Book § 42-15, which requires such motions to be in writing, was not raised before the trial court. Further, the defendant has not supplied analysis in his brief indicating that this specific claimed lapse in the rules of practice requires reversal under the plain error doctrine; see Practice Book § 60-5; or, put differently, ‘‘is such an obvious error that it affects the fairness and integrity of and public confidence in the judicial proceedings.’’(Internalquotationmarksomitted.)State v. Myers, 290 Conn. 278, 291, 963 A.2d 11 (2009); see also id., 290 (‘‘[a] trial court’s failure to comply with a ruleofcriminalprocedure,withoutmore,isinsufficient to require reversal for plain error’’). Accordingly, we decline to review this claim. Second, tothe extent the defendant’sbrief addresses the trial court’s evidentiary rulings, it is largely inadequate. Although the defendant cites and quotes numerous authorities on the topics of relevance, hearsay, and the residual exception of § 8-9 of the Connecticut Code of Evidence in an abstract manner, he does not specifically analyze the trial court’s ruling that Veader’s testimony was inadmissible hearsay not subject to the residual exception by applying law to fact. ‘‘Analysis, ratherthanmereabstractassertion,isrequiredinorder to avoid abandoning an issue by failure to brief the issue properly.’’ (Internal quotation marks omitted.) ConnecticutLight&PowerCo.v.Dept.ofPublicUtility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003); see also, e.g., Hartford/Windsor Healthcare Properties, LLCv.Hartford,298Conn.191,194n.4,3A.3d56(2010) (‘‘[b]ecause the plaintiffs do not cite any authority or develop their claim with analysis, we conclude that the claim is inadequately briefed’’). We therefore will not address the defendant’s claim to the extent it poses an evidentiary challenge to the trial court’s decision to exclude Veader’s testimony. Insofar asthe defendant’sbrief adequatelyaddresses the trial court’s determination that Ingram’s testimony wasirrelevant,wedisagreewithhisarguments.‘‘[R]elevant evidence is evidence that has a logical tendency
to aid the trier in the determination of an issue. . . . All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . The trial court has wide discretion to determine the relevancy ofevidenceand[e]veryreasonablepresumptionshould bemadeinfavorofthecorrectnessofthecourt’sruling in determining whether there has been an abuse of discretion.’’ (Internal quotation marks omitted.) State v. Kalil, 314 Conn. 529, 540–41, 107 A.3d 343 (2014). Weagreewiththestatethatthetrialcourtdidnotabuse its discretion in determining that Ingram’s testimony aboutasinglesamesexsexualencountereighteenyears prior to the homicide was irrelevant, particularly when the state did not purport to challenge the defendant’s assertionthatthevictimwashomosexual.31 Asthestate aptly observes, ‘‘the victim’s mere status as a homosexual is no more probative of whether he is likely to have engagedinnonconsensualsexualactswithanotherperson than would a defendant’s mere status as a heterosexual be probative of such a tendency.’’ Accordingly, weconcludethatthetrialcourtdidnotabuseitsdiscretion in determining that Ingram’s proffered testimony was irrelevant. Finally, because the defendant has failed to establish that these evidentiary rulings by the trial court on the basis of hearsay and relevance were improper, he cannotestablishthattheydeprivedhimofhissixthamendmentrighttopresentadefense,whichisanunpreserved claim that he raises pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). ‘‘The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . ‘‘A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanisticallytodepriveadefendantofhisrights,theconstitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . Thus, our law is clear that a defendant may introduce onlyrelevantevidence,and,if theprofferedevidenceis notrelevant,itsexclusionisproperandthedefendant’s right is not violated.’’ (Internal quotation marks omitted.) State v. Tutson, 278 Conn. 715, 748, 899 A.2d 598 (2006). Accordingly, because the defendant has failed toestablishthatthetrialcourtimproperlyexcludedthe testimony of Veader and Ingram, he similarly cannot establishthattheexclusionviolatedhisrighttopresent a defense, and his claim fails under the third prong of
Golding. See, e.g., State v. Crespo, 303 Conn. 589, 614, 35 A.3d 243 (2012); State v. Davis, 298 Conn. 1, 10, 1 A.3d 76 (2010); State v. Tutson, supra, 750–51.

Outcome: The judgment is affirmed

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