author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. JORGE SANCHEZ
    (AC 17336)
    O’Connell, C. J., and Landau and Schaller, Js.
    Argued February 24
    officially released August 25, 1998

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Linda N. Howe, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Jorge Sanchez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and larceny in the first degree in violation of General Statutes § 53a-122 (a) (3). On appeal, the defendant claims that the trial court improperly (1) denied his motions for acquittal on the basis of insufficient evidence to prove his guilt beyond a reasonable doubt and (2) refused to give an accomplice and a special credibility instruction concerning the testimony of the state’s informant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant had been a member of the Latin Kings gang from approximately 1989 until 1993 when he was expelled for breaking gang rules. He sought help from his cousin, Antonio Rigual, in getting back in the gang. Rigual asked his roommate, Edwardo Ortiz, what the defendant could do to regain his membership in the gang. Ortiz asked Emanuel Roman and Richard Morales, the local gang leaders, for their advice. Roman and Morales informed Ortiz that the only way the defendant could regain his membership was to kill either Louis Rodriguez, who had had an affair with Roman’s wife, or the victim, Angel Soto, who knew of the affair but failed to report it. Ortiz did not relay this information to the defendant until the defendant asked Ortiz how he could regain his membership. Because the defendant did not know the victim, Ortiz pointed him out.

With the help of others, the defendant stole a red van from Devoe Paints and painted it with brown primer. On the evening of April 8, 1994, the defendant, Jesus Valentin and an individual known as “Black” drove through Bridgeport in the van looking for the victim. They saw the victim leave the Savoy Club and followed his vehicle until it stopped outside a restaurant. When the van stopped next to the victim’s vehicle, the defendant and Black shot him repeatedly and fatally.

After the shooting, the defendant, Valentin and Black attended Rigual’s birthday party, which was given by Ortiz. The defendant told Ortiz and Rigual that he had just killed the victim. Rigual put his necklace of colored beads on the defendant, a sign of gang membership. The day after the murder, Ortiz and the defendant’s brother purchased flares, intending to bum the van, which was recovered before it was burned.

During their investigation, the police obtained statements from Ortiz, Valentin and Albert Aponte, each of whom recounted substantially the same facts about the victim’s death. At trial, however, Valentin and Aponte recanted their statements. Aponte claimed that his statement was a fabrication that Ortiz had told him to give. At the close of the state’s evidence and again at the end of all the evidence, the defendant moved for a judgment of acquittal as to all charges. The trial court denied both motions. Additional facts will be noted as necessary.

I

The defendant’s first claim is that there was insufficient evidence to prove him guilty beyond a reasonable doubt. More specifically, the defendant claims that because the state’s informant, Ortiz, was impeached on numerous grounds, there was no evidence by which the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt. We are not persuaded.

The standards by which we review claims of insufficient evidence are well established. “When reviewing a sufficiency of the evidence claim, our courts apply a two-prong 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. Perry, 48 Conn. App. 193, 196, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Emphasis in original; citations omitted; internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 17-18, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

“Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [t]his 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. Torres, 242 Conn. 485, 490-91, 698 A.2d 898 (1997).

“It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . .

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Smith, 46 Conn. App. 600, 608, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997).

The defendant claims there was insufficient evidence because Ortiz, the state’s informant, was its primary witness. Ortiz was biased because he had avoided federal prosecution by agreeing to provide both state and federal authorities with information about the criminal activities of the gang, and Aponte and Valentin recanted the sworn statements they had given to police.

Our review of the transcript reveals that Ortiz, at the time of his testimony, was incarcerated in a federal detention facility in Rhode Island. From his association with the gang, Ortiz knew that the defendant used an Uzi and Black used a .38 caliber firearm to kill the victim. The shell casings and bullets found at the scene or removed from the victim were from those types of weapons. At a time subsequent to the murder, Ortiz spoke to the defendant, Black and Valentin about the murder because there was a rumor on the streets that Ortiz had killed the victim. Ortiz thought one of them had talked about the murder.

While he was being held in Bridgeport on April 10, 1995, Aponte spoke with members of the Bridgeport police department about the victim’s murder. He also spoke to the Bridgeport police on May 30,1995, and gave them a tape-recorded statement, which was transcribed and signed under penalty of perjury. That statement was consistent with Ortiz’ version of the murder. In addition, Aponte saw the defendant and another person painting the van used in the shooting, and he saw the Uzi used by the defendant prior to the murder. He was privy to a conversation in which Roman told the defendant to kill the victim or be killed himself, and he was present when the defendant was accepted back into the gang. He also identified a photograph of the defendant. He did not tell the police that his statement was given according to Ortiz’ direction. While Ortiz was incarcerated in Rhode Island, Aponte visited him and Ortiz gave him his car.

On June 19, 1995, Valentin was arrested by the Bridgeport police and gave the police a signed statement, under oath and witnessed by his mother. He also identified a photograph of the defendant. Valentin’s statement was also consistent with Ortiz’ testimony. In addition, the defendant drove the van to Valentin’s home on April 8,1994, and asked him to drive. Valentin was in the van when the defendant and Black shot the victim. At the time the defendant picked him up, Valentin had no knowledge of the plan to shoot the victim and was surprised when it occurred.

On appeal, the defendant, in effect, asks this court to sort through the evidence, discarding that which tends to support his guilt. This we will not do. There was ample evidence in the record to support the jury’s conclusion that the defendant was guilty of the crimes of murder, conspiracy to commit murder and larceny. In reaching this conclusion, we need determine only whether a reasonable view of the evidence supports the jury’s verdict. See State v. Torres, supra, 242 Conn. 490. The crux of the defendant’s argument is that Aponte and Valentin were more believable than Ortiz. “We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The weight of evidence and the credibility of witnesses was for the jury to determine, and we, therefore, we will not disturb the jury’s verdict.

II

The defendant’s second claim is that the trial court improperly refused to give an accomplice and a special credibility instruction concerning the testimony of the state’s informant, Ortiz. The defendant, therefore, claims that the trial court deprived him of his constitutional right to a properly instructed jury or, in the alternative, committed plain error. We disagree.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . We will reverse a conviction only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict. . . .

“A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. ... An instruction that fails to satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

“The test of a charge is whether it is correct in law, adapted to the issues and sufficient for the guidance of the jury .... The primary puipose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. . . . The purpose of a charge is to call the attention of the members of the jury, unfamiliar with legal distinctions, to whatever is necessary and proper to guide them to a right decision in a particular case.” (Citations omitted; internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 509-10, 659 A.2d 1194 (1995). “It is the law of this state that a request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given. ... It is, however, also the law of this state that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).

The following additional facts are necessary for our consideration of the defendant’s claim. Ortiz was arrested by members of the Federal Bureau of Investigation in New Jersey on June 29,1994. He told authorities he wanted to talk to them about events that had taken place in Bridgeport. On that date, Ortiz talked about a number of criminal events in Bridgeport, but he did not talk about the death of the victim, except to say that he was not involved in the murder. Ortiz did not talk to authorities about the victim’s murder until November, 1994. He did not answer questions from law enforcement authorities during the summer of 1994 because he was not represented by counsel at that time. Ortiz was involved in armed robberies in Bridgeport, and he had lied to federal authorities about the extent of his involvement with drug activities. He entered into a written agreement to cooperate with federal, state and local law enforcement authorities, and to testify about criminal activities of which he was aware.

Ortiz pleaded guilty to one federal charge of conspiracy to possess and distribute narcotics in exchange for his testifying against the defendant in this case, as well as other unrelated prosecutions. At the time of trial, Ortiz had not yet been sentenced on this charge. He knew the range of sentence for that charge was from ten years to life, that there were federal guidelines that determined the length of his sentence and that the amount of cooperation he gave on a number of cases would have a direct influence on his sentence. He hoped to benefit by testifying against the defendant in this case. Ortiz claimed that he had to tell the truth to gain any benefit from the agreement he made with federal authorities.

The defendant’s request to charge included an instruction that the jury had a duty to view Ortiz’ testimony with special caution because he was an accomplice to the murder. The defendant argued that because Ortiz had told the defendant how he could regain his gang membership, i.e., by killing the victim or Rodriguez, and because Ortiz had joined the defendant’s brother in buying flares to bum the van, he qualified as an accomplice and an informant.

The trial court disagreed that Ortiz was an accomplice, explaining that Ortiz was not a “self-confessed” criminal with respect to the charges at issue in this trial. “To be entitled to an instruction regarding a specific witness’ possible motive, the defendant must show that the witness is a complaining witness who could himself be subject to prosecution depending on the veracity of his testimony, and that there was evidence to support the assertion that the witness was the culpable party.” State v. Sinchak, 47 Conn. App. 134, 143, 703 A.2d 790 (1997), cert. granted on other grounds, 243 Conn. 964, 707 A.2d 1266 (1998). Initially, we note that Ortiz was not a complaining witness.

In refusing to give the defendant’s requested charge, the trial court stated that Ortiz did not confess to murdering the victim or to the related charges. Ortiz confessed to only one federal charge of conspiracy to possess and distribute narcotics. With respect to the murder, the trial court said that Ortiz was a messenger for Rigual, Roman and Morales. After he learned what the defendant could do to regain his membership, Ortiz did not go directly to the defendant with the information. He waited until the defendant approached him. There was no evidence that Ortiz had participated in planning the murder or knew when it was to take place or that he was at the scene. There was no evidence to support the elements of the aiding and abetting statute: “solicits, requests, commands, importunes or intentionally aids another person to engage in conduct . . . .” General Statutes § 53a-8 (a). Evidence demonstrated that Ortiz’ participation in the purchase of flares occurred a day after the murder, and the van was recovered unburned.

The defendant then orally requested the trial court to incorporate language from State v. Cooper, supra, 182 Conn. 207, regarding the “motive or intent of a culpable victim or witness” in its charge. The trial court instructed defense counsel to put the request in writing. The trial court repeated its invitation to the defense to file a supplemental charge at the close of final arguments. Defense counsel did not file a supplemental request to charge.

The trial court’s charge on the credibility of witnesses encompasses more than eight pages of transcript, including, but not limited to the following instructions: “You may disbelieve all or part of any witness’ testimony. . . . The most obvious factor you are going to use in determining questions of believability is your own common sense, that same common sense you use every day in determining whether something makes sense to you and whether you feel you can put some faith in it. . . . If you should think that a witness has testified falsely or deliberately falsified his testimony, you should consider whether you should rely upon any of his testimony. . . . Did the witness have an interest in the outcome of the case or any bias, prejudice or motive concerning anybody or any matter involved in the case? . . .You should evaluate the testimony of a witness by your own knowledge of human nature and of the motives which influence and control human conduct. ...” The defendant took an exception to the charge because it did not include the requested language regarding accomplice testimony and the “motive of the witness to testify falsely which I sort of combined in my written request.” On appeal, the defendant claims that the trial court’s failure to give the accomplice-motive of witness instruction deprived the defendant of his constitutional right to due process. We are unpersuaded.

We agree there was no evidence that Ortiz was an accomplice for the reasons cited by the trial court in refusing to give the accomplice charge. There was no reason for the trial court to give a special instruction on the credibility or motive of Ortiz. “A criminal defendant is not entitled to an instruction singling out any witness who testifies for the state regarding that witness’ possible motivation for testifying falsely.” State v. Sinchak, supra, 47 Conn. App. 143. “Finally, [i]n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life . . . .” (Internal quotation marks omitted.) State v. Torres, supra, 242 Conn. 491. “It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985). Faced with the evidence before them, the jurors relied on their own observations and experience of the affairs of life to determine the credibility of the witnesses in reaching their verdict.

Here, the jury was clearly aware through Ortiz’ testimony that he was cooperating with law enforcement officials at all levels in order to reduce the number of charges against him and the amount of time he would serve on the federal charge of conspiracy to possess and distribute narcotics. He admitted freely that he had participated in aimed robberies and that he was a gang member. The defense placed in evidence a statement that Ortiz had given to authorities that the defense claimed was inconsistent with his testimony. All of that evidence was before the jury. The trial court informed the jurors that it was their role to determine the facts, to determine which witnesses to believe and to consider what motive a witness might have in testifying. The trial court gave a charge on the credibility of witnesses and how the jury was to deliberate on that issue. Therefore, there was no need for the trial court to give a special instruction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-122 (a) provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny as defined in § 53a-119 and ... (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars . . . .”

       Aponte’s and Valentin’s statements were admitted in evidence pursuant to the Whelan doctrine because the statements contained substantial evidence as to the witnesses’ personal knowledge of the victim’s murder. See
        State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       The defendant subsumes in this claim that Ortiz’ testimony was inherently incredible and substantially uncorroborated, and was, therefore, insufficient to establish the defendant as the victim’s murderer. This claim presents a question of law. In support of his claim, the defendant cites State v. Sivri, 231 Conn. 115, 165, 646 A.2d 169 (1994) (Peters, C. J., dissenting); State v. Skipper, 228 Conn. 610, 621-22, 637 A.2d 1101 (1994); State v. Hammond, 221 Conn. 264, 287-88, 604 A.2d 793 (1992); and State v. Estrada, 28 Conn. App. 416, 422, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). Each of the cases cited stands for the rule that a “tiler’s finding of fact are not conclusive where the state’s evidence is improbable and unconvincing and where all the facts found are insufficient to prove the guilt of the defendant beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, supra, 163 (Peters, C.J., dissenting).
      Although we recognize this rule of law when appropriate, it is inapplicable in this case because the facts here are distinguishable from the cases cited by the defendant. In each of those cases, the state presented no evidence regarding a particular element of the crime with which the defendant was charged. To reach a guilty verdict, the jury had to draw inferences by speculating about the missing evidence. That is not the situation in the case before us, where there was controverted evidence as to the elements of the crimes charged. In such instances, the role of the jury is to determine the credibility of the witnesses. “Whether there seems to be contradiction . . . in the testimony, it is precisely this type of factual conflict that Anglo-American jurisprudence has traditionally entrusted to the jury.” State v. Gaynor, 182 Conn. 501, 504, 438 A.2d 749 (1980).

       Valentin was an uncharged material witness. Charges against him for the death of the victim were discharged two weeks prior to his giving testimony in this case.

       The defendant requested the trial court to instruct the jury as follows: “The motive a person has in telling his story is always to be considered by you in weighing whether or not his story is true. You may consider the fact that Mr. Ortiz is benefiting himself through presenting his testimony in such a manner. In weighing 1 he testimony of an accomplice who is a self-confessed criminal, you should consider that fact. It may be that you would not believe a person who has committed a crime as readily as you would believe a person of good character. In weighing the testimony of an accomplice who has not yet been sentenced or wTiose case has not yet been disposed of or who has not been charged with offenses in which the state has evidence, you should keep in mind that he may in his own mind be looking for some favorable treatment in the sentence or disposition of his own case or hoping not to be arrested. Therefore, he may have such an interest in the outcome of this case that his testimony may have been colored by that fact. Therefore, you must look with particular care at the testimony of an accomplice and scrutinize it very carefully before you accept it. There are many offenses that are of such a character that the only persons capable of giving useful testimony are those who are themselves implicated in the crime. It is for you to decide what credibility you will give to a witness who has admitted his involvement and criminal wrongdoing, whether you will believe or disbelieve the testimony of a person who by his own admission has committed or contributed to the crime charged by the state here. Like all other questions of credibility, this is a question you must decide based on all the evidence presented to you.”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       Our review of the transcript reveals that throughout the trial, the court instructed the jury as to the law with respect to prior inconsistent statements, credibility and truth of the matter at issue.

       We assume, without deciding, that the defendant’s claim was properly preserved.


source: Caselaw Access Project

author: FREEDMAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RAFAEL DELGADO
    (AC 14296)
    Lavery, Dupont, and Freedman, Js.

      Submitted May 1
    officially released August 25, 1998

      Francis J. DiScala, with whom were Francis J. DiScala, Jr., and John P. Thygerson, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Opinion

FREEDMAN, J.

This matter is currently before us on remand from the Supreme Court. State v. Delgado, 243 Conn. 523, 707 A.2d 1 (1998). The defendant originally appealed to this court from a judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21.

In his original appeal to this court, the defendant asserted that (1) the trial court improperly allowed join-der of the manslaughter and risk of injury counts, (2) the verdict was against the weight of the evidence, (3) the trial court improperly excluded the testimony of a defense expert witness due to an alleged violation of a sequestration order, (4) the trial court improperly admitted evidence of prior injuries to the victim, (5) the trial court’s charge to the jury was misleading and confusing, resulting in the dilution of the state’s burden of proof and (6) the trial court improperly allowed into evidence a videotape of the victim and her mother. We concluded that the evidence was sufficient to establish the defendant’s guilt of the crimes charged. We further held, however, that the trial court improperly joined the manslaughter and risk of injury counts. Accordingly, we ordered a new trial and declined to afford the defendant review on the other issues. State v. Delgado, 42 Conn. App. 382, 681 A.2d 327 (1996), rev’d, 243 Conn. 523, 707 A.2d 1 (1998).

Our Supreme Court granted certification limited to the following issue: “Did the Appellate Court properly decide that the trial court had abused its discretion in the joinder of the manslaughter and risk of injury counts?” State v. Delgado, 239 Conn. 920, 682 A.2d 1008 (1996). The Supreme Court concluded that the trial court did not abuse its discretion in denying the defendant’s motion to sever the manslaughter and risk of injury counts. State v. Delgado, supra, 243 Conn. 525. The Supreme Court, therefore, reversed the judgment of this court and remanded the case to us with direction to consider the defendant’s remaining claims on appeal. Id., 525 n.5.

The facts that the jury reasonably could have found are stated in both State v. Delgado, supra, 243 Conn. 523, and State v. Delgado, supra, 42 Conn. App. 382. Additional facts relevant to this appeal will be set forth as each of the defendant’s remaining claims are addressed by this court.

I

The defendant first claims that the trial court abused its discretion in excluding the testimony of a defense expert witness due to an alleged violation of a sequestration order. The defendant argues that the exclusion of the defense witness violated the compulsory process clause of the sixth amendment and the due process clause of the fourteenth amendment to the United States constitution.

The following facts are necessary to resolve this claim properly. Prior to the commencement of evidence, the trial court granted the state’s motion for a sequestration order to apply to both the state and the defendant. During the presentation of the defendant’s case, the defendant sought to present as a witness Kwame Yeboa, a graduate of the University of Ghana in West Africa and the director of genetics at Columbia Presbyterian Medical Center. While testifying as to his credentials, Yeboa indicated that he was board certified in pediatrics and clinical genetics. He then admitted that he had reviewed some of the testimony of Malka Shah, a prior witness presented by the state. The trial court thereafter granted, over the defendant’s objection, the state’s motion to exclude Yeboa’s testimony because of the violation of the sequestration order. According to the defendant, because Yeboa was precluded from testifying, the jury was not provided with an opportunity to hear an outstanding pediatrician, geneticist and expert in Down’s syndrome testify on the defendant’s behalf.

“The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. . . . Expert witnesses are not excepted under either the rule of practice or the statute and may be sequestered.” (Citations omitted; internal quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 413, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). “Ordinarily, the remedy for violation of a sequestration order lies in the trial court’s discretion. State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982). We acknowledge, however, that, under particular circumstances, the unjustified exclusion of a witness’ testimony can amount to a deprivation of the defendant’s right to present a defense. See, e.g., Braswell v. Wainwrighl, 463 F.2d 1148,1155-56 (5th Cir. 1972) (holding that trial court’s discretionary exclusion of sole corroborating witness’ testimony denied defendant fundamental constitutional right).” State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996).

“We acknowledge that experts are not fungible.” Id. In this case, however, although the defendant was precluded from calling Yeboa as a witness, the defendant was able to present the testimony of three other qualified expert witnesses, all of whom testified as to the cause of the victim’s death. The defendant presented the testimony of Salvador Castells. At the time of trial, Castells testified that he was a professor of pediatrics at the State University of New York and that he was board certified in pediatrics. He stated that one of his main areas of research in the past few years was children with Down’s syndrome.

Castells testified that the victim had an upper airway obstruction and abnormalities in the lungs, preventing her from breathing properly. Castells also testified that the victim had a seizure at the time of her death and that those three conditions caused her death. He indicated that the victim would have had more bruises if she had been dropped or thrown to the floor. Castells testified that the victim did not have a subdural hemorrhage on December 14, 1992. He indicated that the victim could have sustained the injury to her head by falling off the six inch mattress onto the floor. He also indicated that the victim could have had a seizure and then bumped her head on the floor, causing the lineal fracture. According to Castells, this was a misdiagnosed case of child abuse. He testified with a reasonable degree of medical certainty that the victim sustained her fracture as a result of a seizure or an accidental striking of her head.

Louis Roh, the deputy chief medical examiner for the County of Westchester, New York, also testified for the defendant. Roh attended the Medical College of Seoul National University in Korea. He trained at the Bronx Veterans Hospital for four years, including two years of anatomic pathology and two years of clinical pathology. He then worked in the area of forensic pathology in the office of the New York City medical examiner. Roh worked there for one and one half-years before becoming an assistant medical examiner in Westchester County. He testified that he held board certification from the American Board of Pathology in forensic, anatomic and clinical pathology, and was a member of the National Association of Medical Examiners. At the time of trial, Roh was a clinical assistant professor at the University Medical College, where he taught pathology.

Roh testified that during the past twenty years he had performed more than six thousand autopsies, and had assisted in and observed another twenty thousand autopsies. Roh stated that the victim sustained the fracture of her skull and brain injuries as a result of a seizure on the night in question. Roh further explained that “while [the victim] was sleeping on the mattress she developed a seizure, convulsive attack. As a result, she fell off the mattress and then during the seizure activity her back of head was striking the flat, hard surface on the kitchen repeatedly, causing fracture of the skull on the back of the head and as a result there was injury to the brain and she became unresponsive and later on she died.” Roh further testified that in his opinion, because of the absence of any cuts or bruises on the victim, her injury was not caused by being thrown to the floor. Finally, Roh testified that this was not a case of battered child syndrome.

Louis Bader, a board certified diagnostic radiologist, also testified for the defendant. Bader testified in support of the defendant’s theory that the victim fractured her skull by banging her head on the floor. Bader testified that, looking at the X rays of the victim, there was no subdural hemorrhage.

On the basis of that testimony, we conclude that even if the trial court’s exclusion of Yeboa’s testimony was an excessive sanction and therefore an abuse of discretion, it did not deprive the defendant of his right to present an effective defense, as the defendant was permitted to present three other qualified expert witnesses. The trial court’s action therefore did not deprive the defendant of his constitutional rights. “Because we conclude that any impropriety ... is nonconstitutional, the defendant bears the burden of demonstrating that the trial court’s [alleged] error caused him harm. . . . The standard for determining whether a nonconstitu-tional error is harmless is that [t]he defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Citations omitted; internal quotation marks omitted.) State v. Cavell, supra, 235 Conn. 721-22. As previously noted, the defendant presented the testimony of three medical expert witnesses, Castells, Roh and Bader. Each of those experts provided compelling testimony on behalf of the defendant as to the cause of the victim’s death. The defendant has not shown that it is more probable than not that the action of the trial court in excluding Yeboa’s testimony affected the result of the case. The defendant, therefore, has failed to demonstrate that the exclusion of Yeboa’s testimony, even if the trial court acted improperly, was harmful.

II

The defendant next argues that the trial court abused its discretion in admitting evidence of prior injuries to the victim. According to the defendant, there was nothing in the record to indicate how or by whom the injuries were caused. The defendant claims that without a causal link to him, the evidence was highly inflammatory and lacked compensating probative value. We disagree.

The trial court admitted, over the defendant’s objection, evidence that the victim had suffered a broken femur and had bruises on her face prior to her death. The defendant relies on State v. Wilson, 199 Conn. 417, 513 A.2d 620 (1986), in support of his claim that the trial court should have conducted a balancing test to determine whether the probative value of the evidence of the prior injuries outweighed its prejudicial tendency. In Wilson, the defendant, who was convicted of the manslaughter of an infant girl, objected to the admission of evidence of prior injuries that the victim and her sister had suffered. The trial court had admitted the evidence on the issue of intent to cause serious physical injury, an essential element of manslaughter in the first degree. The defendant argued that there was no evidence that the defendant had caused these prior injuries. Our Supreme Court held that “before such evidence can have any probative value, there must be a preliminary showing sufficient to support a jury finding that the defendant, in fact, caused the prior injury.” (Emphasis in original.) Id., 449.

State v. Wilson, supra, 199 Conn. 417, is distinguishable from the present case, however, because in Wilson the defendant was charged only with manslaughter in the first degree. In the present case, the defendant was charged with manslaughter and risk of injury to a child in violation of General Statutes § 53-21. Specifically, with regal'd to the risk of injuiy count, the defendant was charged with “wilfully and unlawfully causing] and permitting] [the victim] ... to be placed in a situation that the child’s health was likely to be impaired.” Thus, the defendant was not charged under § 53-21 with doing an act likely to impair the health or morals of a child. The evidence of the prior injuries that the victim had suffered was clearly relevant and admissible on the issue of whether the defendant had caused or permitted the victim to be placed in a situation in which her health was likely to be impaired. The trial court, therefore, did not abuse its discretion in admitting that evidence.

III

The defendant next argues that the trial court’s charge on causation was misleading and confusing, resulting in a dilution of the state’s burden of proof. The defendant claims that his due process rights were violated by the charge. The defendant concedes that this claimed error is unpreserved, but requests that this court review the claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

We initially note that the record is adequate to review the alleged claim of error, and the claim is of constitutional magnitude alleging the violation of a fundamental right. “An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. . . . This court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). The defendant has, therefore, satisfied the first and second prongs of Golding. We must next consider whether the defendant has satisfied his burden as to the third requirement of Golding, i.e., that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.

“At the outset, we note that under . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . Furthermore, [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. State v. Pearsall, [44 Conn. App. 62, 68, 687 A.2d 1301, cert. denied, 240 Conn. 910, 689 A.2d 473 (1997)].” (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 198, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).

The defendant specifically takes issue with the trial court’s charge that the causation requirement is satisfied as long as the defendant’s actions were “a sufficiently direct cause of the ensuing death” and that “the defendant’s actions must have contributed to [the victim’s] death.” (Emphasis added.) The defendant additionally challenges the following language: “In many situations giving rise to criminal liability, the harm . . . is unintended yet it is directly or indirectly caused by an act of the defendant. In such cases, where the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the law . . . holds the defendant criminally responsible.” Finally, the defendant claims that the trial court improperly failed to inform the jury that the defendant’s conduct could have been superseded by an efficient intervening cause.

In State v. Leroy, 232 Conn. 1, 13, 653 A.2d 161 (1995), our Supreme Court stated that “a jury instruction with respect to proximate cause must contain, at a minimum, the following elements: (1) an indication that the defendant’s conduct must contribute substantially and materially, in a direct manner, to the victim’s injuries; and (2) an indication that the defendant’s conduct cannot have been superseded by an efficient, intervening cause that produced the injuries.” As to the first element, the trial court properly charged the jury that “[w]ith regard to either one of the manslaughter in the first degree charges, the state must prove that the defendant caused the death of [the victim]. This means that the defendant’s conduct was the proximate cause of the victim’s death. An act or omission to act is the proximate cause of death when it substantially and materially contributes in a natural and continuous sequence, unbroken by an intervening cause to the resulting death. It is the cause without which the death would not have occurred and it is the predominating cause, the substantial factor from which death followed as a natural, direct and immediate consequence.” The trial court’s definition of proximate cause is virtually identical to the one given by our Supreme Court in State v. Wassil, 233 Conn. 174, 181-82, 658 A.2d 548 (1995). The court, therefore, properly instructed the jury regarding the first element of causation. Reading the charge as a whole, it is not reasonably possible that the jury was misled by this charge.

As to the second element, the defendant argues in his brief that the actions of the emergency medical technicians in transporting the victim to the hospital might have been an efficient, intervening cause of the victim’s death. The defendant, however, did not present this theory as a defense, and no witnesses testified that the handling of the victim by the emergency personnel was a cause of her death. The defendant’s constant theory was that the victim suffered a seizure on the night in question, causing her to fall off her mattress and strike her head on the floor. Regarding the element of an efficient, intervening cause, our Supreme Court has stated as follows: “We emphasize that, as State v. Leroy, supra, 232 Conn. 13, suggests, the requirement of language in the jury instructions regarding an efficient, intervening cause is not ironclad. It arises in those cases in which the evidence could support a finding by the jury that the defendant’s conduct was overcome by an efficient, intervening cause, or in which the evidence regarding proximate causation was such that, based on the doctrine of efficient, intervening cause, the jury could have a reasonable doubt about the defendant’s guilt. Thus, in the general run of cases, in which the evidence is susceptible of a finding of only one cause of harm contemplated by the statute, a statement in the jury instruction referring to an efficient, intervening cause might well be unnecessary.” State v. Munoz, 233 Conn. 106, 121-22 n.8, 659 A.2d 683 (1995). We conclude, on the facts of this case, that a charge on an efficient, intervening cause of the victim’s death was unnecessary.

IV

The defendant’s final claim is that the trial court abused its discretion by allowing into evidence, over objection, a videotape of the victim and her mother. The defendant claims that the admission of the videotape resulted in a denial of his constitutional rights to confrontation and a fair trial.

We note that although the defendant did object to the introduction of the videotape at trial, he did so on the ground that its introduction was prejudicial and inflammatory. The defendant did not argue before the trial court that the introduction of the videotape violated his constitutional rights to confrontation and a fair trial. Furthermore, the defendant has not requested that we review this unpreserved claim pursuant to State v. Golding, supra, 213 Conn. 239-40. “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” (Internal quotation marks omitted.) State v. Casado, 42 Conn. App. 371, 374, 680 A.2d 981, cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996). We decline, therefore, to grant review of the defendant’s claim under Golding. We further decline to review this claim under the plain error doctrine because we do not find that the admission of the videotape affected the fairness or integrity of the proceedings or resulted in manifest injustice to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor . . . .”

       General Statutes § 54-85a provides: “In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.”
      Practice Book § 42-36 provides: “The judicial authority upon motion of the prosecuting authority or of the defendant shall cause any witness to be sequestered during the hearing on any issue or motion or during any part of the trial in which such witness is not testifying.”

       After further argument, the trial court reaffirmed its prior ruling and denied the defendant’s request for a mistrial.

       After attending college and medical school in Spain, Castells came to this country and did a pediatric internship at Sinai Hospital in Baltimore. He then did a two year residency at Jefferson Medical School in Philadelphia, followed by one year fellowships in metabolic and endocrine diseases at Yale University and Massachusetts Institute of Technology.

       The transcript discloses the following:
      “Q. Now, is your opinion as to the cause of death based upon all the factors that you mentioned?
      “A. Yes. I think being very specific on one, I think the cause of death was, this baby had upper airway obstruction. The baby also had abnormalities in the lungs so [s]he could not breathe properly and the baby had the seizure at the time of death. These three factors—conditions—severe lack of oxygen to the brain—they caused the death. . . .
      “Q. And your opinions you stated as to the cause of death is due to a seizure; is that correct, doctor?
      “A. Yes.
      “Q. That was as to the fractured skull, is that right?
      “A. Yes.”

       The transcript discloses the following:
      “Q. [Y]ou mentioned a few moments ago, in asking you about whether or not the baby could have been dropped or fallen fifteen feet or thrown to the floor or against the wall, that I believe you indicated that you would expect to see more than what you saw, is that right?
      “A, We’re talking about falling from ten feet?
      “Q. Yes.
      “A. Falling from ten feet—I mean ten feet is—I’m six feet—so it’s a tremendous height. So you know if you talk about falling from a ten foot height, it will not be a linear fracture, it would be a much more complex fracture and also there would be bruising and swelling in the site of the fracture. This baby had only a linear fracture.
      “Q. Would you also expect to find injuries to other parts of the body from a fall?
      “A. Yeah, from ten feet, the baby will just not fall on the head. It would then rebound on the floor in other areas of the body. [S]he will have more bruises in other areas.”

       When he came to the United States in 1968, Roh had a one year rotating internship at the New York Infirmary and a year of general surgical training at Jewish Memorial Hospital in New York City. He then went into the field of general pathology.

       The transcript discloses the following:
      “Q. Doctor, in your opinion, could this injury, this fracture, have been caused in this case—was this injury caused by a fall or being thrown to the floor?
      “A. My opinion is not.
      “Q. Why not?
      “A. If the child is thrown or dropped from that height, it can certainly produce fracture, but when that part of the back of the head strikes the floor from that distance, I would certainly expect to see cuts of the skin, back of the head or bruising of the back of the head on the skin area. In this case it was not present. That to me is indication of a—the baby having a seizure and the banging back of the head repeatedly on the flat surface.
      “Q. In examining the medical evidence, was there any evidence of any bruise to the shoulder or the back area?
      “A. No.
      “Q. And would you expect that—there to be, had she fallen?
      “A. If baby fell ten feet ... I would certainly expect to see the bruising of the back of the head and shoulder and neck area where it comes to contact with the surface.”

       After medical school, Bader interned for one year and then had a three year diagnostic radiology residency at New York Hospital, Cornell Medical Center. He was chief resident during his last year. In the 1980s, he was chairman of the department of radiology at Park City Hospital in Bridgeport. He then became director of radiology at Bridgeport Hospital for the Park Avenue facility. Bader had a clinical professorship appointment at Yale lor a number of years.

       The transcript discloses the following:
      “Q. Doctor, if a child sixteen months of age, in development six months, with Down’s syndrome, weighing somewhere around seventeen to eighteen pounds, was sitting on the edge of a six inch mattress, say, from the floor, and while sitting, fell over backward, striking her head forcibly against the hard floor—the back of her head, could she—Do you have an opinion as to whether or not she could suffer a fractured skull?
      “A. Yes.
      “Q. And what is that opinion?
      “A. Yes.
      “Q. And doctor, if that same child as I’ve just described were lying on her back on a hard floor and had a seizure and struck her head repeatedly against that hard floor, do you have an opinion as to whether or not those acts of repeatedly striking of her head against the floor could cause a fracture of the back of her head?
      “A. Yes.
      “Q. And doctor, what is that opinion?
      “A. Yes.”

       We find equally unavailing the defendant’s related claim that according to trial testimony, the victim might have sustained the fractured femur prior to November 1, 1992, the date from which the risk of injury count runs. The information charging the defendant with risk of injury to a child specifies that the defendant committed this crime “during approximately November 1, 1992, to December 14,1992.” “The state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8 of the Connecticut constitution requires that the state choose a particular moment as the time of an offense when the best information available to the state is imprecise.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 386, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

       The defendant can prevail pursuant to Golding only if “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239^0.

       The trial court charged regarding causation as follows: “Causation. With regard to either one of the manslaughter in the first degree charges, the state must prove that the defendant caused the death of [the victim]. This means that the defendant’s conduct was the proximate cause of the victim’s death. An act or omission to act is the proximate cause of death when it substantially and materially contributes in a natural and continuous sequence, unbroken by an intervening cause to the resulting death. It is the cause without which the death would not have occurred and it is the predominating cause, the substantial factor from which death followed as a natural, direct and immediate consequence.
      “It is not necessary that the particular kind of harm that results from the defendant’s act be intended by him. Where the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible. This means that the defendant’s actions must have contributed to [the victim’s] death.
      “It is unnecessary for proximate cause purposes that the particular kind of harm that results from the defendant’s act be intended by him. In this case with these charges the state does not have to prove that the defendant intended to kill [the victim]. In many situations giving rise to criminal liability, the harm that results is unintended, yet it is directly or indirectly caused by an act of the defendant. In such cases, where the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible.”
      On the specific charge on manslaughter in the first degree in violation of § 53a-55 (a) (1), the court charged in part as follows: “In order to find the defendant guilty of this crime, the state is required to prove beyond a reasonable doubt each of the following elements: first, that the defendant caused the death of [the victim]. This requires that the defendant’s actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability. . . . Therefore, in order for the defendant to be found guilty of the charge of manslaughter in the first degree, you must find beyond a reasonable doubt that he intended to cause serious physical injury to [the victim] and that [the victim] died as a result of the actions of the defendant. If you find that the state has failed to prove any one of these elements, you must find the defendant not guilty.”
      After the jury began deliberations, it requested that the trial court reread, inter alia, the charge on § 53a-55 (a) (1). In response to this request, the trial court reread its previous charge.

       Specifically, the defendant refers to the testimony of John Corris, the paramedic who treated the victim. Corns indicated that the victim was placed on a wooden short board prior to being transported to the hospital. Corris also stated that he told his partner, the driver of the ambulance, “Let’s hit it.”

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.....”
      “Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review.” (Internal quotation marks omitted.) State v. Sivri, 46 Conn. App. 578, 590, 700 A.2d 96, cert, denied, 243 Conn. 938, 702 A.2d 644 (1997).


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. FREDDIE COX, JR.
    (AC 16933)
    O’Connell, C. J., and Lavery and Spear, Js.

      Argued June 3
    officially released August 25, 1998

      Tara L. Knight, special public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Freddie Cox, Jr., appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant claims that (1) the state committed prosecutorial misconduct during the questioning of witnesses and during its closing argument, (2) the trial court made an improper statement to the jury, thereby depriving the defendant of a fair trial and (3) the trial court improperly charged the jury, sua sponte, on consciousness of guilt, which allowed the jury to infer flight on an inadequate factual basis. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In February, 1996, the victim, Yolanda Rudolph, ended an intimate relationship with the defendant and moved in with a girlfriend. On March 23,1996, the victim was living at 217 Hollister Avenue in Bridgeport. On the night of March 23, 1996, the defendant arrived at the victim’s residence uninvited. Although the victim still talked to the defendant by telephone, she had not told the defendant where she resided. To be allowed to enter the victim’s building, visitors were required to press a buzzer and identify themselves over an intercom.

After identifying the defendant, the victim let him in. They engaged in conversation for fifteen minutes, and the victim told the defendant she was not going to go back to him and then turned away from him. When she turned back to look at the defendant, he had pulled out a knife. A struggle ensued in which the victim attempted to run upstairs to her apartment, but the defendant prevented her from doing so. In the course of the struggle, the defendant grabbed the victim and made rapid punching motions toward her abdomen with the knife. The victim’s screams attracted the attention of her neighbors, who asked over the intercom what was going on. The defendant then ran out of the building.

The victim went upstairs to her apartment and saw that she was cut and bleeding. The police were notified and, after they questioned the victim at the scene of the incident, she was taken by ambulance to Bridgeport Hospital, where she was treated and released the next day. While at the hospital, the victim was treated by Richard Garvey, a general surgeon. Garvey had previously treated the victim in January for a ruptured spleen.

On the night of the incident, after questioning the victim, police officers from the Bridgeport police department unsuccessfully attempted to locate the defendant. An arrest warrant for the defendant was issued on April 24, 1996. Further attempts to locate the defendant were unsuccessful. The defendant was finally arrested on May 3, 1996, at the office of his probation officer.

The defendant was charged with attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The jury returned a verdict of guilty of the lesser included offense of assault in the second degree. This appeal followed.

I

The defendant first claims that the prosecutor committed prosecutorial misconduct by continually suggesting to the jury, through his questions to witnesses and in his closing argument, that the defendant was responsible for an earlier spleen injury sustained by the victim, thereby depriving the defendant of a fair trial in violation of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut.

The defendant failed to raise this claim at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “[T]o deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . [M] ore-over . . . [Golding] review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial .... State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996).” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997).

The following facts are relevant for an understanding of the defendant’s claim. At trial, the prosecutor asked the victim if the defendant had ever struck her prior to March 23,1996. The trial court sustained the defendant’s objection to this question. Later, the prosecutor questioned Garvey about the victim’s prior spleen injury and asked the defendant on cross-examination whether he had ever struck the victim prior to March 23, 1996. The defendant answered no. The defendant made no objection to either of these questions.

The defendant also argues that the state made several improper references to the victim’s previous injury in its closing argument. Again, the defendant made no objection and failed to ask for a curative instruction. The defendant, therefore, presumably did not regard those remarks or the questions asked as seriously prejudicial at trial. See State v. Correa, supra, 241 Conn. 358; State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993); State v. Negron, 221 Conn. 315, 330, 603 A.2d 1138 (1992).

“The defendant cannot, by identifying isolated remarks, set forth a claim of constitutional magnitude. State v. Chance, 236 Conn. 31, 64, 671 A.2d 323 (1996); State v. Atkinson, supra, 235 Conn. 770; State v. Watlin-gton, 216 Conn. 188, 193, 579 A.2d 490 (1990); State v. Smith, 209 Conn. 423, 428, 551 A.2d 742 (1988).” State v. Correa, supra, 241 Conn. 358. The defendant has failed to establish a sufficient pattern of misconduct pervading throughout the trial that was so blatantly egregious that it infringed on his right to a fair trial. The defendant’s claim is therefore not reviewable under State v. Golding, supra, 213 Conn. 239-40.

II

The defendant’s second claim is that the trial court made an improper statement during its instructions to the jury, depriving the defendant of his constitutional right to a fair trial. Specifically, the defendant claims that the trial court instructed the jury that there was no evidence of cocaine abuse by the complaining witness. The defendant argues that this statement amounted to a factual determination by the trial court that impermissibly invaded the fact-finding province of the jury. We disagree.

During the cross-examination of Garvey, defense counsel asked the following question: “The report indicates there’s a secondary diagnosis test that there was cocaine abuse. Did that cocaine abuse in any way affect your treatment of her stab wound at all?” Garvey answered, “No.” The report that defense counsel referred to was the hospital report of the victim for the treatment of her stab wound. The report was not entered into evidence. Later, on direct examination of the defendant, defense counsel asked: “This particular night, whose house was she at?” The defendant answered: “[The victim] was over some man’s house. It was like a—it looked like a crack house to me.” No further mention of the hospital report or the defendant’s description of the victim’s home as a crack house was made until the defendant’s closing argument.

The trial court made the following statement during its instructions to the jury. “Now, I’m going to bring a subject up to you, people may not like it, here and there and everywhere. This woman was on the stand, the doctor was on the stand, he was cross-examined and a suggestion was made to him about a secondary condition in regard to the cause of the injuiy or her condition. Cocaine. And then you had a remark by the defense during the course of the defendant’s testimony about a crack house. You accept both of those for what they are. They’re someone else’s opinion, but you have no cold, hard facts that this woman was involved in any use of cocaine. And the suggestion of it does not make it true and they’re not here for that. So, don’t penalize her because of some argument or ingenuity of placing it here before you. It doesn’t belong. Could it be here? Yes. If it was true, bring in the evidence. That wasn’t done. Understand that.” The defendant excepted to the court’s charge.

“Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. ... In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . The function of the court in a criminal trial is to conduct a fair and impartial proceeding. . . . The role of the [t]rial [j]udge is neither that of automaton nor advocate . . . nor is a judge merely an umpire in a forensic encounter but [h]e is a minister of justice and in whatever he does . . . the trial judge should be cautious and circumspect in his language and conduct.

“Furthermore, [d]ue process requires that there should be no [statement during the trial] that appears to reject a defendant’s credibility and implies judicial support of a prosecution witness’ testimony. . . . The influence of the trial judge on the jury is necessarily and properly of great weight . . . and jurors are ever watchful of the words that fall from him. . . . These admonitions and cautions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended. . . . The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s. ... A fine line separates proper and improper judicial conduct and the judge must strive to appear impartial and detached. . . . Quoting Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486 (1924), our Supreme Court stated: The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table. . . . This court has said that [j]udges in this state . . . are given wide latitude to comment fairly and reasonably upon evidence received at trial, but the court must refrain from making improper remarks which are indicative of favor or condemnation. . . . Even though a judge may take all reasonable steps necessary for the orderly progress of the trial, he must always be cautious and circumspect in his language and conduct.” (Citations omitted; internal quotation marks omitted.) State v. Pharr, 44 Conn. App. 561, 568-71, 691 A.2d 1081 (1997).

The defendant argues that the trial court improperly bolstered the credibility of the state’s key witness. The defendant claims that evidence of cocaine abuse on the part of the victim could have had a direct bearing on her credibility as well as her ability to perceive and recall events.

In this case, there was no evidence or testimony introduced that established a link between abuse of cocaine by the victim and her ability to perceive or recall events. Further, there was no evidence indicating that the victim was under the influence of cocaine at the time of the event such that would have affected her ability to perceive and recall events. The defendant attempts to place great weight on the fact that there was a diagnostic test performed on the victim on the night of the stabbing that resulted in a secondary diagnosis of substance abuse. There is no evidence, however, indicating what the parameters of this diagnostic test were. Further, no evidence establishes whether this substance abuse was on the night of March 23, 1996, or some time prior. The defendant asked no follow up questions of Garvey as to the meaning of this diagnostic test. The defendant also had the opportunity to ask the victim on cross-examination whether she was under the influence of cocaine or crack on the day of the stabbing, but failed to do so.

On the basis of our review of the record and transcript in this case, we cannot conclude that the trial court departed from the standards governing the orderly and impartial conduct of a criminal trial. The trial court’s statement did not cross that fine line that separates proper and improper judicial conduct. The credibility of the victim was not bolstered by the trial court’s statement. The result of the trial court’s statement was to place the testimony concerning the hospital report in the proper context and to instruct the jury that while substance abuse could have been an issue in this case, it was not because there was no evidence of any relevance produced to make that connection.

Ill

The defendant’s final claim is that the trial court’s jury instruction concerning consciousness of guilt was not supported by the evidence. The defendant claims that this instruction allowed the jury to infer flight from an inadequate basis.

At trial, Officer Anthony Mandolfo testified that he arrived at the scene of the stabbing at around 1 a.m. His partner asked the victim who had stabbed her, and the victim identified the defendant and gave police the defendant’s address, telephone number and the area he frequented. Mandolfo further testified that they attempted to contact the defendant by telephone that night, but his telephone was out of service. They also went to the defendant’s address that night, but he was not there. Nor was he at an area that he often frequented. Detective Robert Sapiro testified that he obtained an arrest warrant and unsuccessfully attempted to locate the defendant at his apartment, where he talked to a woman who claimed to be the defendant’s mother.

The defendant’s probation officer, Carla Scinto, testified that on March 26,1996, three days after the stabbing incident, the defendant attended a scheduled visit with her. At that meeting, the defendant made no mention of the incident with the victim, but indicated that he had broken up with her. In addition, the defendant requested an out-of-state transfer of his probation to North Carolina. Scinto stated that the defendant made two more visits to her on April 24, 1996, and May 3, 1996. Further, Scinto stated that the defendant did not make arrangements with her to turn himself in to the police, and on the May 3, 1996 visit, she notified the detective bureau that the defendant was with her. On cross-examination, Scinto stated that transfer requests by probationers are routine.

The defendant testified that he personally arranged to turn himself into the police. He also testified that he visited the victim in the hospital after the stabbing on March 23, 1996.

Our Supreme Court has stated: “Flight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Citations omitted; internal quotation marks omitted.) State v. Holloway, 209 Conn. 636, 651-52, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). “ ‘The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.’ State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).” State v. Freeney, 228 Conn. 582, 594, 637 A.2d 1088 (1994).

“It is relevant to show the conduct of an accused, as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act. State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). ... The court must weigh the probative value against any prejudicial effect on the defendant.” (Citations omitted.) State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986). “Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Perry, 48 Conn. App. 193, 201, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

On the basis of our review of the transcripts and evidence in this case, we cannot say that the trial court abused its discretion in determining that the evidence of flight was more probative than prejudicial or that it appears that an injustice has been done. The admitted evidence was sufficient to support the consciousness of guilt instruction. The jury was properly instructed on the factors to consider in determining whether to infer a consciousness of guilt on the evidence before it and that it was for the jury to determine the weight to be accorded to such evidence in making its determination. We conclude that the trial court’s charge on consciousness of guilt was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such ipjury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . . .”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” (Citation omitted; internal quotation marks omitted.) State v. Santos, 41 Conn. App. 361, 364, 675 A.2d 930, cert. denied, 237 Conn. 932, 677 A.2d 1374 (1996).

         The consciousness of guilt instruction was not requested by the state. It came as no surprise, however, to the defendant. In addition to flight evidence in its case-in-chief, the state in rebuttal, and over the defendant’s objection, introduced additional consciousness of guilt evidence. The state also argued flight and consciousness of guilt to the jury.

       The trial court’s instruction on consciousness of guilt was as follows: “You’ll recall evidence that [was] given in the course of the trial in the state’s case when the woman indicated that somebody yelled through the intercom with, what’s going on out there and so forth. In her view of the events, the events ended and she came—left and went upstairs somewhere. And he went out and then the police came eventually. They went to Union. They went to Stratford Avenue. They were looking and he was nowhere to be found. In the general sense, I’m telling you that there’s a theory in law that says there can be a consciousness of guilt by flight. If someone flees immediately from a scene, and you can follow that a little further by saying that they couldn’t locate him after the arrest warrant was issued and the detective that came in was down at 85 Union looking for him, and eventually you heard the testimony as to what occurred.
      “So flight, when unexplained, tends to prove circumstances of guilt. The flight of a person accused of a crime is a circumstance which, when considered together with all the facts of the case, may justify a finding of the defendant’s guilt. However, flight, if shown, is not conclusive. It is to be given the weight to which you, the jury, think it is entitled under the circumstances. You will also consider any explanation you may have heard concerning that flight and consider that, as well, as rebutting the consciousness by flight charge. If you find that there was a fleeing in this case from the charge, you may consider [that] as evidence of his consciousness of guilt. If you find he was not fleeing from this charge, you should not consider it as evidence of a consciousness of guilt. It is up to you to give the evidence the weight to which you think it is entitled.”