text:
    KEVIN HOLMES v. COMMISSIONER OF CORRECTION
    (AC 28050)
    McLachlan, Lavine and West, Js.
    Argued March 12
    officially released May 13, 2008

      Kevin E. Dehghani, special public defender, for the appellant (petitioner).

      Adam E. Mattei, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Kevin Holmes, appeals following the denial of his petition for certification to appeal from the judgment of the habeas court denying his second amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying his petition for certification to appeal and (2) improperly concluded that his first habeas counsel rendered effective assistance. We dismiss the petitioner’s appeal.

The petitioner was convicted, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59. The petitioner was sentenced to fifteen years incarceration, suspended after twelve years, with five years of probation. In 2002, the petitioner filed a petition for a writ of habeas corpus, alleging ineffective assistance of counsel due to the failure of his trial counsel, attorney Eroll Skyers, to file a fee waiver to appeal. Attorney Lawrence Hopkins represented the petitioner with respect to his first petition for a writ of habeas corpus. Hopkins did not raise a claim regarding a potential conflict of interest on the part of Skyers. The parties, however, resolved the petition for a writ of habeas corpus with a stipulation, and in accordance with that stipulation, the court rendered judgment restoring the petitioner’s appellate rights. Subsequently, the petitioner appealed to this court, which affirmed the petitioner’s conviction, and our Supreme Court denied certification to appeal. See State v. Holmes, 90 Conn. App. 544, 545, 877 A.2d 826, cert. denied, 275 Conn. 927, 883 A.2d 1250 (2005).

The petitioner then filed a second petition for a writ of habeas corpus, which was subsequently amended, claiming ineffective assistance of Hopkins on the ground that Hopkins did not include in the first petition for a writ of habeas corpus an allegation of a conflict of interest on the part of Skyers. This second amended petition is the petition involved in this appeal. The court, T. Santos, J., held a one day hearing on the petitioner’s second amended petition for a writ of habeas corpus and heard testimony from the petitioner and Skyers. The petitioner testified that after the jury’s verdict, Skyers told him that he knew the victim’s family. The petitioner also testified that he told Hopkins that Skyers knew the victim’s family. Skyers, however, testified that, prior to the trial, he told the petitioner that the victim, Kenneth Dennis, may have been related to a friend of his, Brian Dennis. Skyers based that possibility solely on the common surname. Skyers testified that he had asked Brian Dennis if he knew of or was related to Kenneth Dennis, and Brian Dennis stated unequivocally that he did not know Kenneth Dennis.

On August 17, 2006, the court issued a memorandum of decision, denying the petitioner’s second amended petition for a writ of habeas corpus. Subsequently, the petitioner filed a petition for certification to appeal from the denial of his petition for a writ of habeas corpus on the ground of “[sjufficiency of the evidence.” The court denied the petition for certification to appeal, and on January 25, 2007, the court articulated its basis for denying the petition for certification to appeal. The court reasoned that “[t]he petition for certification to appeal . . . did not specify any grounds that would allow this court to evaluate the merit of the claims to be pursued on appeal. The court found, therefore, that an appeal would be frivolous and denied the petition for certification to appeal.”

“[A] disappointed habeas corpus litigant [may] invoke appellate jurisdiction for plenary review of the decision of the habeas court upon carrying the burden of persuasion that denial of certification to appeal was an abuse of discretion or that injustice appears to have been done. . . . The Supreme Court adopted this test in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994) . . . and stated that the petitioner must first show that the habeas court’s decision was an abuse of discretion. To establish an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... If the appeal meets one of the criteria set forth in [Simms v. Warden, supra, 608], the habeas court’s failure to grant certification to appeal constitutes an abuse of discretion. After successfully demonstrating the existence of an abuse of discretion, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted; internal quotation marks omitted.) Grant v. Commissioner of Correction, 103 Conn. App. 366, 367-68, 928 A.2d 1245, cert. denied, 284 Conn. 921, 933 A.2d 723 (2007).

On the basis of our review of the record and the thorough memorandum of decision, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal from its denial of the petitioner’s second amended petition for a writ of habeas corpus. The court found that “[a]t best, the evidence presented by the petitioner only intimates the possibility of a conflict of interest. For example, the petitioner has not shown that there is a relationship, if any, between Kenneth Dennis and Brian Dennis.” As such, the court found that w[t]he petitioner has in no way established that an actual conflict of interest adversely affected attorney Skyers’ performance.” Therefore, the court concluded that the petitioner had not “proven the required ineffective assistance of trial counsel that would form the basis for a claim of ineffective assistance of prior habeas counsel.” The petitioner did not present any evidence that there was an actual conflict of interest on the part of Skyers. See Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 584-85, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). As such, the issue is not debatable among jurists of reason, a court could not resolve the issue in a different manner and the question is not adequate to deserve encouragement to proceed further. As a result, the court did not abuse its discretion in denying the petitioner certification to appeal from the court’s denial of his second amended petition for a writ of habeas corpus.

The appeal is dismissed.


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PATRICK SMITH
    (AC 27837)
    Flyrm, C. X, and Robinson and Pellegrino, Js.

      Argued February 11
    officially released May 13, 2008

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Robin S. Schwartz, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, former senior assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Patrick Smith, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1). On appeal, the defendant claims that (1) the trial court improperly denied his motion to suppress the pretrial and trial eyewitness identifications made by the victim, (2) the court improperly admitted into evidence a chisel found in the victim’s automobile, (3) the prosecutor engaged in impropriety and (4) the court improperly gave a Chip Smith instruction to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of January 17, 2002, the victim stopped at a D.B. Mart in Waterbury to buy some groceries. The victim was seated, loading purchases into her car when she looked up and saw the defendant standing just outside her open driver’s side door, wearing a lady’s stocking over his head and holding a knife-like object. The defendant told the victim to move over and give him the keys to the car, which the victim did. The defendant entered the victim’s car and grabbed her by the hair. He held her against the passenger side door and said that he would hurt her unless she cooperated. The defendant then drove away from the D.B. Mart parking lot.

At one point, the defendant stopped the car and demanded the victim’s purse. He removed from it her money, credit card and driver’s license. He then drove along a nonresidential road in an industrial park, finally parking the car near a dumpster behind an unlit building. At this point, the defendant pulled down his pants, exposed his penis and told the victim “to treat him like he was [her] boyfriend or lover.” As the victim touched the defendant’s penis, he put his hands down her pants and touched her vagina. After approximately fifteen minutes of this behavior, the defendant got out of the car, walked around to the car’s passenger side, pushed the victim into the driver’s seat and ordered her to drive to a certain automated teller machine, which she did, and then ordered her to use her credit card to make a cash withdrawal. The victim attempted to make the withdrawal but was unsuccessful because she did not know her personal identification number. The defendant then ordered the victim to continue driving, and, as she approached the parking lot where he had first entered her vehicle, he ordered her to stop the car. He then exited the car, disappearing into the night and ending the encounter.

The victim thereafter drove toward her house. She used her cellular telephone to call her fiance and told him that she had been robbed. He called the police and, shortly after the victim returned home, officers from the Waterbury police department arrived at her house. The victim provided Angel Robles, a Waterbury police detective, with a description of her assailant and accompanied the police officers to the police station to give a formal statement. Her car was impounded as evidence. The police returned the victim’s car to her a few days later. One week later, she found a chisel under the driver’s seat as she cleaned the car. The chisel did not belong to her or her fiance, and she notified the Waterbury police department and turned it over to the police.

On January 29, 2002, members of the Waterbury police department contacted the victim. They informed her that they may have caught the person who had assaulted her and asked her to come to the police station to look at some photographs. The victim went to the police station and was given a photographic array from which she identified the defendant as her assailant.

The defendant thereafter was arrested and, by substitute information, charged with robbery in the first degree, kidnapping in the first degree and sexual assault in the third degree. The jury found the defendant guilty on all counts. The court sentenced the defendant to a term of imprisonment of eighteen years on the charge of robbery in the first degree, twenty-one years on the charge of kidnapping in the first degree and five years on the charge of sexual assault in the third degree. The court imposed a total effective sentence of twenty-one years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress the pretrial and trial eyewitness identifications made by the victim because the identifications were the product of an unnecessarily suggestive identification procedure in violation of the fifth and fourteenth amendments to the United States constitution. Specifically, the defendant argues that the pretrial photographic array presented to the victim was unnecessarily suggestive because (1) the identification procedure was not a double-blind sequential procedure, (2) the officers never warned the victim that the suspect may not have been included in the photographic array through which the victim identified the defendant, (3) after the victim identified the defendant as her assailant, the officers told her that he was the suspect they were investigating, and (4) the color of the defendant’s skin is comparatively lighter than that of the other seven suspects in the array, and he was the only suspect with long gray hair and blue eyes, wearing a red shirt. We disagree with the defendant’s argument that the procedure was unnecessarily suggestive.* **

The following additional facts are relevant to our resolution of the defendant’s claim. On the evening of her assault, the victim provided the police with a description of her assailant. That same evening, the police conducted two separate show-up identification procedures with the victim. In both instances, the victim indicated that the suspect was not her assailant.

Twelve days later, members of the Waterbury police department informed the victim that they had apprehended someone who they thought might be her assailant. She was asked to come to the police station to view a photographic array prepared by Detective Robles. Howard Jones, a Waterbury police detective, conducted the identification procedure. He set the array before the victim and told her to review it. He then stepped back and said nothing else. From this array, the victim identified the defendant as her assailant. She circled his photograph in black ink, initialed the photograph and signed a form confirming her identification. After this, Detective Jones advised the victim that she had identified the person the police were holding as a suspect.

At trial, the defendant filed a motion to suppress the victim’s identification of him. The court orally denied the defendant’s motion on October 25, 2005, finding that the array was comprised of photographs of eight individuals who all strongly resembled one another in terms of appearance and that the defendant’s photograph did not stand out in the array. Accordingly, the court concluded that the identification procedure was not unnecessarily suggestive. The court also concluded that the even if the identification procedure had been unnecessarily suggestive, the totality of the circumstances required a conclusion that the victim’s identification nevertheless was rehable.

We now set forth the applicable standard of review as stated by our Supreme Court. “[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect.

“Furthermore, [w]e will reverse the trial court’s ruling [on evidence] only where there is an abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error.” (Internal quotation marks omitted.) State v. Randolph, 284 Conn. 328, 384-85, 933 A.2d 1158 (2007).

“Because, [generally, [t]he exclusion of evidence from the jury is ... a drastic sanction, one that is limited to identification testimony which is manifestly suspect . . . [a]n identification procedure is unnecessarily suggestive only if it gives rise to a veiy substantial likelihood of irreparable misidentification.” (Internal quotation marks omitted.) Id., 385. “Absent a very substantial likelihood of irreparable misidentification, [w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (Internal quotation marks omitted.) State v. Cook, 262 Conn. 825, 837, 817 A.2d 670 (2003).

“To determine whether a photographic array is unnecessarily suggestive, a reviewing court considers various factors, including, but not limited to: (1) the degree of likeness shared by the individuals pictured ... (2) the number of photographs included in the array ... (3) whether the suspect’s photograph prominently was displayed or otherwise was highlighted in an impermissible manner ... (4) whether the eyewitness had been told that the array includes a photograph of a known suspect ... (5) whether the eyewitness had been presented with multiple arrays in which the photograph of one suspect recurred repeatedly . . . and (6) whether a second eyewitness was present during the presentation of the array.” (Citations omitted; internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 385-86.

On the basis of its factual findings, the court properly concluded that the photographic array from which the victim identified the defendant did not create a very substantial likelihood of irreparable misidentification. The police officers’ use of an eight person photographic array is not, in and of itself, impermissibly suggestive. State v. Sparks, 39 Conn. App. 502, 511, 664 A.2d 1185 (1995) (“[t]he presentation of an array of several photographs to witnesses, including that of the suspect, does not constitute an impermissibly suggestive pretrial identification procedure in the absence of any unfairness or other impropriety in the conduct of the exhibit” [internal quotation marks omitted]). Furthermore, our thorough review of the record does not reveal any unfairness in the manner in which the array was presented to the victim. Accordingly, we reject the defendant’s argument that the photographic array was unnecessarily suggestive.

The defendant’s other arguments likewise fail. Due process does not require the suppression of a photographic identification that is not the product of a double-blind, sequential procedure. State v. Nunez, 93 Conn. App. 818, 828-32, 890 A.2d 636, cert. denied, 278 Conn. 914, 899 A.2d 621, cert. denied, 549 U.S. 906, 127 S. Ct. 236, 166 L. Ed. 2d 186 (2006). Further, the defendant’s photograph used in the array was not unnecessarily suggestive. “The question ... is not whether the defendant’s photograph could be distinguished from the other photographs, but whether the distinction made it unnecessarily suggestive.” Id., 828; see also id., 827 (no constitutional mandate gives defendant right to photographic array of look-alikes); United States v. Thai, 29 F.3d 785, 808 (2d Cir.) (principal question is whether photograph of accused, matching descriptions given by witness, so stood out from all other photographs as to suggest to identifying witness that accused more likely to be culprit), cert. denied sub nom. Lan Ngoc Tran v. United States, 513 U.S. 977, 115 S. Ct. 456, 130 L. Ed. 2d 364, cert. denied sub nom. Minh Do v. United States, 513 U.S. 993, 115 S. Ct. 496, 130 L. Ed. 2d 406 (1994). This court cannot say that it was clearly erroneous for the trial court to find that the photographs included in the array all matched the description of the victim’s attacker and that the defendant’s photograph did not stand out from all the other photographs in such a manner as to influence the victim’s identification.

Likewise, the failure of the police to provide the victim with a warning that the suspect may not appear in the photographic array does not render the identification unnecessarily suggestive. See State v. Williams, 203 Conn. 159, 177, 523 A.2d 1284 (1987) (“[w]hen . . . the victim would have inferred [without police comment] that the occasion for [her] being requested to identify someone is that the police have a particular person in mind who has been included among those to be viewed, police statements to that effect do not render the identification procedure unnecessarily suggestive” [internal quotation marks omitted]); State v. Nieves, 106 Conn. App. 40, 49-50, 941 A.2d 358, cert. denied, 286 Conn. 922, 949 A.2d 482 (2008). Finally, the police officer’s telling the victim that she had identified the suspect after she positively identified the defendant as her assailant does not render the identification procedure unnecessarily suggestive. We reject the defendant’s arguments that an identification procedure can be rendered unnecessarily suggestive by events that occur after the positive identification actually is made. Accordingly, the court did not abuse its discretion when it concluded that the identification procedure used with the victim was not unnecessarily suggestive.

In order to prevail on his claim that the victim’s identification was inadmissible at trial, the defendant must demonstrate both that the identification procedure was unnecessarily suggestive and that the resulting identification was not reliable under the totality of the circumstances. “Only if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification for due process purposes.” State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987). Because we conclude that the identification procedure used with the victim was not unnecessarily suggestive, we do not reach the question of the reliability of the resulting identification. See State v. Holliman, 214 Conn. 38, 49, 570 A.2d 680 (1990). The court properly denied the defendant’s motion to suppress the victim’s identification of the defendant.

II

The defendant next claims that the court improperly admitted into evidence a chisel found in the victim’s car. Specifically, the defendant contends that the state failed to make a prehminary showing of the chisel’s relevance and chain of custody. We disagree.

The following additional facts are relevant to the defendant’s claim. At trial, the victim indicated that the chisel the prosecutor showed her looked to be the same as the one she found in her car except for some sort of oxidation and “pink stuff’ on it. The state then sought to establish the chisel’s chain of custody through the testimony of police Sergeant Joseph Rainone. Rainone testified that in assisting a detective with this case, he received the chisel as evidence and subsequently heat sealed it in an evidence bag. Rainone then indicated that the label on the evidence bag contained a clerical error. The case name on the label did not match the case number. Rather than containing the victim’s name, the evidence label contained the name of a third party not involved in this case. Rainone testified that the case number associated with the evidence was correct but that the correct name should be that of the victim. He further testified that at some point, a second label was placed on the bag, which correctly listed the victim’s name.

The court thereafter found that the chisel was relevant and that the chain of custody had been demonstrated sufficiently. The court found that the victim identified the chisel as the same one she removed from her car and that the chain of custody had been established with reasonable certainty to eliminate the likelihood of a mistake or alteration. Furthermore, the court found that the label placed on the evidence bag did not affect the chisel’s admissibility. The chisel thereafter was admitted into evidence.

We now set forth our standard of review. “The standard of review we apply to a trial court’s evidentiary rulings is well settled. Such rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion. . . . Even when a trial court’s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. ... In our review, we make eveiy reasonable presumption in favor of upholding the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Miller, 95 Conn. App. 362, 387, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006).

A

The first portion of the defendant’s claim is that the chisel was not relevant and, therefore, not properly admitted as evidence. The defendant argues that because the police had access to the victim’s car, the chisel was not relevant absent a showing that the police “could not have accidentally dropped the chisel in the car while processing it for evidence.” We do not agree.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . Evidence is relevant if it tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. ... To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . The determination of whether a matter is relevant to a material issue rests within the sound discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) State v. Miller, supra, 95 Conn. App. 387-88.

In this case, the chisel was relevant because it aided the jury in determining material issues. The victim testified that she found the chisel in her car about one week after her assault and that her attacker held something that was knife-like in appearance. Furthermore, she testified that the chisel did not belong to her or to her fiance. The state was not required to exclude other possible explanations for the chisel’s location in the victim’s car for the chisel to be relevant. Although the victim did not state definitively that her attacker was holding the chisel, her testimony permitted a reasonable inference that the chisel was either the knife-like object used by her attacker or somehow left behind by her attacker when he exited her car. Accordingly, the court did not abuse its discretion in finding that the chisel was relevant.

B

The next portion of the defendant’s claim is that the chisel improperly was admitted as evidence because its chain of custody was not established. Specifically, the defendant argues that the state failed to prove that the chisel was in substantially the same condition as when the crime was committed. We disagree.

“An object connected with the commission of a crime must be shown to be in substantially the same condition as when the crime was committed before it can be properly admitted into evidence. . . . The court has broad discretion on this evidentiary issue, and its ruling may not be overturned on appellate review except for a clear abuse of discretion. . . . The state’s burden with respect to establishing a chain of custody is met by showing that it is reasonably probable that the substance has not been changed in important respects .... The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it ... . There is no hard and fast rule that the state must exclude or disprove all possibility that the article has been tampered with.” (Citations omitted; internal quotation marks omitted.) State v. Green, 55 Conn. App. 706, 713, 740 A.2d 450 (1999), cert. denied, 252 Conn. 920, 744 A.2d 438, cert. denied, 529 U.S. 1136, 120 S. Ct. 2019, 146 L. Ed. 2d 966 (2000); see also State v. Johnson, 162 Conn. 215, 232-33, 292 A.2d 903 (1972).

In the present case, the court could have found that the testimony of both the victim and Rainone made it reasonably probable that the chisel was in substantially the same condition at trial as when the crime was committed. The victim testified that the chisel shown to her in court was the same chisel that she gave to the Waterbury police department. Although the victim also testified that the chisel the prosecutor showed her had some “pink stuff’ on its tip that was not present when she discovered it in her car, the important aspects of the chisel were in no way altered. Furthermore, the victim testified that the differences in the chisel appeared to be some type of oxidation that occurred since she had handed it over to the Waterbury police department.

Rainone then testified that the chisel was in substantially the same condition as when he sealed it in the evidence bag. He also testified that the evidence bag was labeled with the correct case number but initially mislabeled with the wrong name. Subsequently, the bag was relabeled to include the victim’s name.

The testimony of the victim and Rainone, taken together, provide an adequate basis for admitting the evidence as unchanged and untampered. See State v. Barnes, 47 Conn. App. 590, 595, 706 A.2d 1000 (1998) (witness’ certitude, prior knowledge, intimacy with evidence, standing alone, provided adequate basis for admitting evidence). The testimony elicited from the victim established that the chisel was in the same condition as when she found it. The testimony elicited from Rainone demonstrated an adequate and secure chain of custody. Accordingly, the court did not abuse its discretion in admitting the chisel into evidence.

Ill

The defendant’s third claim is that he was deprived of a fair trial because of prosecutorial impropriety. Specifically, he claims that the prosecutor engaged in impropriety during closing arguments by arguing that (1) the victim’s senses and awareness were heightened by the situation in which she found herself, (2) the chisel was an uncommon type, (3) a witness had seen the defendant with a chisel of the same model and (4) the substance on the chisel was consistent with the way the defendant would have used the chisel at his place of employment. We disagree.

Although the defendant objected to some of the language he now claims resulted in prosecutorial impropriety, “we note at the outset that a claim of prosecutorial [impropriety] need not be preserved to warrant our review. Typically, if a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). ... In cases of unpreserved claims of prosecutorial [impropriety], however, it is unnecessary for the defendant to seek to prevail under the specific requirements of . . . Golding . . . and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test. The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). . . .

“In analyzing claims of prosecutorial [impropriety], [a reviewing court should] engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. . . .

“In addition, we are guided by standards of review concerning claims of prosecutorial [impropriety] during closing argument. [P]rosecutoriai [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. . . .

“Or to put it another way while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ... A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows.” (Citations omitted; internal quotation marks omitted.) State v. D’Haity, 99 Conn. App. 375, 382-84, 914 A.2d 570, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007).

Our thorough review of the record fails to reveal any instances of prosecutorial impropriety. The prosecutor stated during closing arguments that the victim’s senses and ability to recall were heightened by the conditions in which she found herself. The prosecutor then listed specific conditions about which the victim testified, which could have heightened her senses and ability to recall, namely, the length of time she spent with the defendant, her proximity to the defendant, her clear view of the defendant, the lighting of the car and her touching of and talking to the defendant. In light of the victim’s testimony, the prosecutor’s argument was based on facts in evidence and the reasonable inferences drawn from them. Accordingly, this argument was not improper.

The prosecutor also made reference to the testimony of the defendant’s former employer, Nicola Pennacchio. Pennacchio testified that the particular type of chisel in this case was a Marples brand chisel, which is an uncommon type of chisel for his employees to have, and that the defendant had carried one. Pennacchio also testified that this type of chisel would be used to plug holes and shave wood, acts that would cause it to come in contact with glue or water. In such instances, the chisel could oxidize and turn black when exposed to oak. On the basis of Pennacchio’s testimony, the prosecutor’s arguments concerning how uncommon the chisel is, the chisel’s model and how the chisel’s markings were consistent with its use as part of the defendant’s former job find their basis in facts in the evidence and reasonable inferences drawn from them. From our review of the record, it is clear that the prosecutor did not engage in impropriety during her closing arguments.

IV

The defendant’s final claim is that the court’s use of the standard Chip Smith charge violated his right to a trial by jury. Specifically, the defendant claims that the standard Chip Smith charge is unconstitutional. We disagree.

The court’s charge was identical to the one approved by our Supreme Court in State v. O’Neil, 261 Conn. 49, 801 A.2d 730 (2002) (en banc). As an intermediate appellate court, we are bound by Supreme Court precedent and are unable to modify it, as the defendant’s counsel has conceded. Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 672, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006). “[W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) Mazzuca v. Sullivan, 94 Conn. App. 97, 102, 891 A.2d 83, cert. denied, 278 Conn. 905, 896 A.2d 107 (2006). Accordingly, we decline to address the defendant’s claim further.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The defendant further claims that the identifications violated his rights under article first, § 8, of the constitution of Connecticut. The defendant, however, has failed to provide an analysis of his claim under the constitution of Connecticut independent of his claim under the analogous provisions of the United States constitution. “[W]e will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 159 n.5, 921 A.2d 622 (2007). Accordingly, we confine our analysis to the defendant’s federal constitutional claim. See State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

       “A double-blind photographic identification procedure is one in which the officer conducting [the procedure] has not been involved in the investigation and does not know who the target is. ... A sequential photographic identification procedure involve[s] showing the witness the suspect and other fillers on the identification procedure one at a time, rather than the traditional practice of simultaneous presentation.” (Citation omitted; internal quotation marks omitted.) State v. Nunez, 93 Conn. App. 818, 825 n.3, 890 A.2d 636, cert. denied, 278 Conn. 914, 899 A.2d 621, cert. denied, 549 U.S. 906, 127 S. Ct. 236, 166 L. Ed. 2d 186 (2006).

       The defendant further argues that the identification procedure was unreliable because the victim did not know him, the victim’s assailant wore a stocking mask that obscured his features, the victim’s observation of her assailant occurred in a dark car at night with intermittent lighting from oncoming headlights and streetlights, the victim had a reduced level of perception during the assault due to her heightened emotional state, and there was a twelve day period between her assault and her identification of him as her assailant. Because we conclude that the court did not abuse its discretion in determining that the identification procedure was not unnecessarily suggestive, we need not determine whether the identification nevertheless was reliable. See State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987).

       “A show-up is the presentation of a single suspect to an eyewitness for possible identification.” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 549 n.12, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

       The defendant labels Ms claim as one of prosecutorial misconduct. We note that m State v. Fauci, 282 Conn. 23, 917 A.2d 978 (2007), our Supreme Court stated: “The use of the term ‘prosecutorial impropriety,’ when reviewing allegedly improper statements by a prosecutor at trial, is more appropriate than the traditional term of ‘prosecutorial misconduct’ in light of our analysis under State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987). Prosecutors make countless discretionary decisions under the stress and pressure of trial. A judgment call that we later determine on appeal to have been made improperly should not be called ‘misconduct’ simply because it was made by a prosecutor. To label what is merely improper as misconduct is a harsh result that brands a prosecutor with a mark of malfeasance when his or her actions may be a harmless and honest mistake. Though our analysis does not change, this new terminology better reflects the actions of a prosecutor under Williams because the first part of our analysis looks at whether the actions of the prosecutor are improper rather than the effects of those actions on the fairness of the trial. ... If these actions do, in fact, so infect the trial with unfairness as to make the resulting conviction a denial of due process, they rise to the level of harmful impropriety. ” (Citation omitted.) State v. Fauci, supra, 26 n.2.

       “The purpose of the [Chip Smith] instruction is to prevent a hung jury by urging the jurors to attempt to reach agreement. It is a settled part of Connecticut jurisprudence .... Better than any other statement ... it makes clear the necessity, on the one hand, of unanimity among the jurors in any verdict, and on the other hand the duty of careful consideration by each juror of the views and opinions of each of his fellow jurors . . . .” (Citation omitted; internal quotation marks omitted.) State v. Feliciano, 256 Conn. 429, 439, 778 A.2d 812 (2001). The standard language contains the admonition that the trial court is not compelling the jury to reach a verdict. The second half of the instructions merely explains the deliberative process to the jury. Id., 441.

       We note that the defendant conceded in his brief and at oral argument that this claim is controlled by the precedent of State v. O’Neil, supra, 261 Conn. 49, and that “[t]he issue is raised and briefed for the sake of future review.”


author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. EDWIN F. RODRIGUEZ
    (AC 27565)
    DiPentima, Lavine and West, Js.

      Argued February 13
    officially released May 13, 2008

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Paul J. Ferencek, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Edwin F. Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-135 (a) (1). On appeal, the defendant claims that (1) he was denied a fair trial when (a) the court and the prosecutor referred to the complaining witness as the victim and (b) the court limited his cross-examination of the complaining witness, and (2) his conviction of both robbery in the second degree and conspiracy to commit robbery in the second degree violate Wharton’s rule. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. William Castaneda, the complaining witness, was employed by an automobile dealer to install accessories in motor vehicles. On Saturday, February 5, 2005, he had spent the day installing a remote starter in the vehicle of a friend, who paid him $150 in cash, including a $100 bill, for his services. At approximately 8:15 p.m. that day, Castaneda parked his own vehicle on Vassar Avenue in Stamford opposite a “strip club” called Harry O’s. As Castaneda walked toward Harry O’s, a green sport utility vehicle passed him, stopped, backed up and stopped again near him. Castaneda was on the passenger’s side of the vehicle. Angel Rosa, who was driving the vehicle, leaned across the defendant, who was in the passenger seat, to talk to Castaneda. Rosa was wearing a do-rag under a baseball style cap. Rosa asked Castaneda if he knew him. Castaneda, recognizing Rosa as someone whom he had seen in Stamford in prior years, answered, “yes.”

Rosa then asked Castaneda to come to his side of the vehicle. Castaneda walked to the driver’s side of the vehicle and noticed a young, light skinned woman, Marisol Alicea, sitting in the backseat. Rosa asked Castaneda if he wanted to purchase some cocaine, and Castaneda said, “no.” Castaneda noticed that the defendant had gotten out of the vehicle and walked up behind him. Castaneda turned to face the defendant, who put a gun in Castaneda’s stomach and asked for everything in his pockets. Castaneda thought it was a .45 caliber gun. Castaneda, being slight in stature and fearful of being injured, let the defendant take whatever he wanted. The defendant was wearing a black leather jacket and his hair was in “com rows.” The defendant took Castaneda’s keys from his front pockets and got back into the vehicle. When Castaneda turned to face the defendant, Rosa took Castaneda’s wallet from his back pocket. Castaneda asked Rosa to return his wallet because it contained his operator’s license, which Rosa did after removing approximately $150 from the wallet. As the defendant, Rosa and Alicea drove off, Castaneda looked for a license plate on the bumper or rear of the vehicle but did not see one.

Castaneda walked toward apolice substation on Fair-field Avenue. Between 8:20 p.m. and 8:30 p.m., Castaneda saw a police vehicle and flagged it down. He told Shawn Redfield, a Stamford police officer, what had happened and described the vehicle and its occupants. Redfield sent a radio bulletin that a robbery had occurred as well as descriptions of the vehicle and its occupants.

Officer Seth O’Brien and Officer Kevin Lynch were in separate patrol vehicles when they heard the broadcast that a robbery had occurred on Vassar Avenue. Both officers observed a vehicle fitting that description parked at the comer of South Pacific Street and Woodland Avenue. O’Brien saw a Hispanic male in the front passenger seat and a light skinned female in the rear seat. Lynch patted down the defendant but found no drugs or contraband. Officer Stephen J. Parrotta arrived and patted down Alicea and found a black handgun in her waistband. The handle of the gun, which was an air pistol, was wrapped in black tape.

O’Brien entered the store on the street comer to look for the operator of the vehicle. On the basis of the response to his inquiry, O’Brien radioed that a suspect had left the store and was walking toward Henry Street on South Pacific Street. Officer Ben Miller heard the radio broadcast and drove north on South Pacific Street looking for a Hispanic man wearing a black baseball cap over a do- rag, and possibly a black jacket. Officer Karl Franzetti had detained another suspect, and Miller went to assist him. A pedestrian advised Miller to look for a suspect in a multifamily dwelling near the corner of Garden and Henry Streets. Miller entered the building and found a man standing behind a staircase. The man fit the description of the third suspect described by Redfield, lived in Bridgeport and had no reason to be in the building. Miller took the man into custody and patted him down but found no dmgs or contraband.

Redfield drove Castaneda to the intersection of Henry and Garden Streets where Miller and Franzetti had detained the two male suspects. Redfield shone his spotlight on each man individually. Castaneda indicated that the suspect detained by Franzetti had not been involved in the robbery but that the suspect detained by Miller had been involved. The man identified by Castaneda was Rosa. Rosa was arrested and taken to the police station.

Redfield then drove Castaneda to the store at South Pacific and Woodland Streets. Again Redfield shone his spotlight on each of the suspects. Castaneda identified the woman as the backseat passenger in the sport utility vehicle and the man, the defendant, as the front seat passenger who had approached him with a gun. Sergeant Michael A. Noto showed Castaneda a gun, which Castaneda identified as the one that had been used during the robbery. The defendant admitted that the gun belonged to him. The defendant and Alicea were arrested.

The defendant was advised of his constitutional rights. Noto searched the defendant and found a set of keys in his pocket. Castaneda identified the keys as his. The police also found $261 in cash in the defendant’s possession, consisting of two $100 bills, two $20 bills, one $10 bill, one $5 bill and six $1 bills. The defendant testified that the money in his wallet was a portion of the money ($504) he received when he cashed a federal government check on February 3, 2005. When Noto asked the defendant what had taken place, he stated that he had been driving the sport utility vehicle when he stopped to talk to Castaneda. Rosa got out of the vehicle, pointed a gun at Castaneda and robbed him. The defendant claimed that he did not know that the robbery was going to take place but admitted that he took Castaneda’s wallet, removed the cash and returned it.

Subsequent to the arrests, the police conducted an inventory search of the sport utility vehicle, which was registered to Tanya Rodriquez. They found the rear license plate wedged into the rubber molding around the rear window and the front license plate on the floor. The police found no drugs or drug paraphernalia in the vehicle.

At trial, the defendant testified that on the date in question, he was the front seat passenger in a sport utility vehicle being driven by Rosa. After Alicea got in the car, Rosa wanted to sell cocaine and put one and one-half bags of the narcotic in the armrest between the front seats of the vehicle. Rosa, Alicea and the defendant drove to Vassar Avenue where Rosa called out to Castaneda. The defendant also testified that Castaneda gave Rosa $20 for the cocaine. When Rosa lifted the armrest to get the cocaine, he had to pick up the defendant’s gun that was lying on top of the cocaine. The defendant had placed the gun in the armrest because it had broken, and he had intended to repair it. According to the defendant, Castaneda gave Rosa his keys as collateral for more cocaine. Rosa gave the keys to the defendant to hold until they obtained more cocaine.

The jury found the defendant guilty of two of the three charges against him.* See footnote 2. The court sentenced the defendant to an effective term of ten years in prison, execution suspended after six years, and five years of probation. This appeal followed.

I

The defendant has asserted a three part claim that he was denied the right to a fair trial under both the state and federal constitutions because Castaneda was referred to as the victim by the court and the prosecutor, and the court denied his motion for a mistrial premised on those references. We disagree that the defendant was denied a fair trial.

The following facts relate to the defendant’s claim. Prior to jury selection, defense counsel orally moved that the court not refer to Castaneda as the victim during colloquy or in its instructions to the jury and that the court instruct the prosecutor not to refer to Castaneda as the victim. The defendant’s defense was that no robbery had occurred, as his interaction with Castaneda was related to a drug transaction. The defendant argued in support of the motion in limine that referring to Castaneda as the victim would imply that a crime had occurred and that the defendant was guilty. The defendant relied on State v. Cortes, 84 Conn. App. 70, 851 A.2d 1230 (2004), aff'd, 276 Conn. 241, 885 A.2d 153 (2005),* * to support his argument. The state countered that although Cortes admonishes the court not to refer to a complainant as the victim when the issue at trial is whether a crime has occurred, Cortes imposes no such restriction on the prosecutor. Referring to Castaneda as the victim, the state asserted, is consistent with the role of a prosecutor seeking justice for the citizens of the state. The court indicated that it would refrain from referring to Castaneda as the victim but would not prohibit the prosecutor from referring to Castaneda as the victim.

A

The defendant claims that the court denied him the right to a fair trial by violating its own order not to refer to Castaneda as the victim. Although the court referred to Castaneda as the victim in one portion of its instruction, viewing the court’s charge as a whole and its curative instruction, we disagree that the court denied the defendant a fair trial on the basis of its charge.

The court’s entire instruction is approximately thirty pages long. Our review of it discloses that the court used the word victim five times when defining physical force. Immediately after the court defined larceny and intent, it stated: “If you find beyond a reasonable doubt that the defendant was committing a larceny, then you must next determine whether the larceny was accomplished by physical force. Physical force means the external physical power over the person, which can be effected by hand or foot or another part of the defendant’s body applied to the victim’s body or applied by an implement, projective or weapon. The gist of robbery, then, is the commission of a larceny, a use of physical force or threat of immediate physical force. Physical force may take many forms. If you find that no actual physical force was inflicted upon the person of the victim, but the victim was threatened with physical force . . . you must also find, to return a verdict of guilty, that the defendant threatened the victim with the immediate use of physical force.

“Now, if you find that the physical force was used or its use immediately threatened against a person in the course of committing a larceny, you must next determine whether such physical force was used or threatened for the purpose of preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after taking or compelling the owner of the property to deliver up the property or to engage in other conduct that aids in the commission of a larceny.” (Emphasis added.)

At the conclusion of the court’s charge, which occurred at the end of the day, the prosecutor noted that the court used the word victim when defining the elements of robbery in the second degree and the use of physical force. Defense counsel stated that the court’s referring to Castaneda as the victim contravened the court’s own order not to refer to Castaneda as the victim and requested that the court reinstruct the jury. The court agreed to reinstruct the jury the next day.

The next day the defendant filed a motion for a mistrial on the basis of Castaneda’s having been referred to as the victim by both the court and the prosecutor. Counsel also presented the court with a request to charge. The court denied the defendant’s motion for a mistrial and told counsel that it would recharge the jury. In doing so, the court noted that this court’s decision in Cortes was based, in part, on the failure of the trial court in that case to reinstruct the jury. In addition, the court noted that not only did it inadvertently refer to Castaneda as the victim, but it recalled that defense counsel did so as well in her final argument. Thereafter, the court reinstructed the jury, stating: “William Castaneda, who testified on two separate occasions in this case, is the complainant in this matter. It is for you, the jury, to determine whether any crimes have been committed against Mr. Castaneda and whether the defendant has committed any of the crimes. I remind you, as I previously instructed you, that the presumption of innocence remains with the defendant throughout the trial, unless and until the state proves beyond a reasonable doubt the essential elements of the crimes charged. That is why Mr. Castaneda is referred to as the complainant. And you are to disregard any other references that I may have made to him in the charge.”

On appeal, the defendant claims that the court’s referring to Castaneda as the victim in its charge denied him due process of law. “The principles guiding atrial judge in conducting a criminal trial are well established. 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.” (Internal quotation marks omitted.) State v. Lopes, 78 Conn. App. 264, 274, 826 A.2d 1238, cert. denied, 266 Conn. 902, 832 A.2d 66 (2003).

The state has argued that the court’s use of the word victim was inadvertent, as was defense counsel’s, and was limited to the instruction on physical force. The state claims that when the challenged language is viewed within the context of the court’s entire charge, it is not reasonably possible that the jury was misled. See State v. Robinson, 81 Conn. App. 26, 30-31, 838 A.2d 243, cert. denied, 268 Conn. 921, 846 A.2d 882 (2004). The state concedes that under certain circumstances, the court is not to refer to the complaining witness as the victim but that in this case, any potentially prejudicial effect of the court’s use of the word was ameliorated by the court’s curative instruction on the presumption of innocence, and the jury’s duty to determine the guilt or innocence of the defendant and to determine the credibility of the witnesses. See id., 32. On the basis of our review of the court’s entire charge, we conclude that the instruction was not improper. By virtue of the logical sequence of the instruction, the jury was not to consider the issue of physical force unless it found that the defendant had committed the crime of larceny.

“In determining whether a trial court’s charge satisfies constitutional requirements . . . individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . .

“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 any approbation for the prosecution’s. ... In commenting on, or marshaling, evidence during its charge, the court is under a duty to provide a fair summary of the evidence and to demonstrate strict impartiality.” (Citations omitted; internal quotation marks omitted.) State v. Cortes, supra, 84 Conn. App. 85-86.

The defense at trial in State v. Cortes, supra, 84 Conn. App. 70, was that the alleged crimes did not happen. On appeal, the defendant claimed that the court “violated his due process right to a fair trial during its jury charge by referring to the complainant as ‘the victim’ . . . .’’Id., 71-72. This court agreed, reasoning that “[i]n cases in which the fact that a crime has been committed against the complaining witness is not contested, but only the identity of the perpetrator is in dispute, a court’s use of the term ‘victim’ is not inappropriate. In cases in which the fact that a crime has been committed is contested, and where the court’s use of the term ‘victim’ has been the subject of an objection and has not been the subject of a subsequent curative instruction, a court’s use of the term may constitute reversible error. The danger in the latter type of case is that the court, having used the term without specifically instructing the jury as to its intention in using the term, might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant.” Id., 86.

Our analysis of the defendant’s claim that the court’s referring to Castaneda as the victim denied him due process of law is in two parts. First, we must determine whether the court’s instruction was improper and then, if the instruction was improper, whether the court’s curative instruction was adequate to protect the defendant’s constitutional rights. As to the first part, we conclude that by referring to Castaneda as the victim in its instruction on physical force, the court did not violate the dictates of Cortes or the defendant’s constitutional rights.

The court began its charge by explaining the functions of the court and of the jury, specifically emphasizing that the jury was the sole judge of the facts and that the court’s actions were not to be taken as an indication of the court’s opinion as to how the jury should determine the issues of fact. Specifically, the court stated that if it “has expressed or intimated any opinion as to the facts, [the jury is] not bound by that opinion.” The court charged the jury on the presumption of innocence and that the defendant was innocent until the evidence produced convinced the jury beyond a reasonable doubt of his guilt. The court proceeded to the state’s burden of proof and reasonable doubt. The court also instructed the jury that the questions, objections and arguments of counsel are not evidence and that it was to decide the case on the evidence presented and distinguished direct from circumstantial evidence. The court also told the jury how to make credibility determinations and how to weigh the testimony of police officers, expert witnesses and the defendant, who took the witness stand in his defense. The court next instructed the jury on intent and then the specific crimes with which the defendant was charged. With regard to the charges of robbery in the second degree, the court stated that “[y]ou must first consider whether the defendant committed a robbery.” It then instructed the jury on the crime of larceny. Thereafter the court stated to the jury that “[i]f you find beyond a reasonable doubt that the defendant was committing a larceny, then you must next determine whether the larceny was accomplished by physical force.” (Emphasis added.) During its instruction on physical force, the court used the word victim five times, which is the basis of the defendant’s claim on appeal.

The defendant’s defense was that the crimes with which he was charged did not occur. The defendant admitted to being present for a drug transaction between Castaneda and Rosa. The trial, therefore, was not about who committed an obvious crime but whether a crime had occurred at all. The sequence of the court’s instruction was to help the jury determine whether Castaneda had been robbed. To reach that determination, the jury first had to determine whether a larceny had occurred and then whether the accused had the intent to commit the larceny. Only after the jury had found that the defendant intended to commit the crime of larceny and that a larceny had occurred was it to consider the element of physical force. Pursuant to the court’s instruction, by the time the jury was to consider the physical force element of the crime of robbery, the jury must have found that a crime had occurred. The jury found that the defendant’s interaction with Castaneda was not a drug transaction but a larceny. The focus of the jury’s deliberation, therefore, moved from whether a crime had occurred to who had perpetrated it. The court’s use of the word victim in the context of physical force, therefore, was not improper.

The jury instruction in this case is further distinguished from that in Cortes, in which the court used the word victim seventy-six times while instructing the jury and did not give a curative instruction. The court here used the word five times within a specific instruction on an element of the crime of robbery, physical force, which the jury could consider only if it found that a larceny had been committed. Unlike in Cortes, therefore, the court’s use of the term was isolated, not pervasive. Moreover, even if the use of the word victim in the context of the court’s charge had been improper, which it was not, the court’s instruction given the next day before the jury retired for its deliberations was curative. This court has determined that the presumption of innocence charge ameliorates whatever impermissible effect, if any, was caused by the court’s referring to Castaneda as the victim. See State v. Eric M., 79 Conn. App. 91, 99-100, 829 A.2d 439 (2003), aff'd, 271 Conn. 641, 858 A.2d 767 (2004). “[I]n the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them.” (Internal quotation marks omitted.) State v. Lemay, 105 Conn. App. 486, 493, 938 A.2d 611 (2008). We conclude, on the basis of our review of the court’s whole instruction, that the court’s use of the word victim did not deprive the defendant of a fair trial.

B

The defendant also claims that the prosecutor’s repeated reference to Castaneda as the victim constituted prosecutorial impropriety that denied him the right to due process of law. We are not persuaded.

As previously set forth, the court agreed not to refer to Castaneda as the victim but refused to order the prosecutor to refrain from referring to Castaneda as the victim. After the court had instructed the jury, the defendant filed a motion for a mistrial, claiming that he was denied due process of law, in part, due to the prosecutor’s repeated use of the word victim during his examination of the state’s witnesses and during final argument. The defendant’s claim is that the prosecutor’s repeated use of the word victim denied him the presumption of innocence because the prosecutor’s words were an expression of his personal opinion as to the defendant’s credibility.

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether the [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] caused or contributed to a due process violation is a separate and distinct question . . . .” (Internal quotation marks omitted.) State v. Ancona, 270 Conn. 568, 595, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005).

Our Supreme Court has stated that a court’s repeated use of the word victim with reference to the complaining witness is inappropriate when the issue at trial is whether a crime has been committed. State v. Warholic, 278 Conn. 354, 369, 897 A.2d 569 (2006). A different set of circumstances exists when the person making reference to the complaining witness is the prosecutor. Id., 369-70. Under those circumstances, our Supreme Court has concluded that “the jury was likely to understand that the state’s identification of the complainant as the victim reflected the state’s contention that, based on the state’s evidence, the complainant was the victim of the alleged crimes.” Id., 370; cf. State v. Smith, 51 Conn. App. 589, 592, 724 A.2d 527 (1999) (jury could determine that prosecutor’s use of word victim meant alleged victim).

In this case, the prosecutor used the word victim sporadically when questioning two of the state’s seven witnesses, Redfield and Noto. In his reply brief, the defendant concedes that the prosecutor’s use of the word victim when examining the state’s witnesses was not frequent. There is, however, no mathematical formula that can be applied ritualistically to claims such as the defendant’s. In his closing argument, the prosecutor referred to Castaneda as the victim. Before the prosecutor got into the heart of his argument, he stated to the jury that what he was about to say was argument, not evidence. He also stated that argument is how counsel interprets the evidence. The prosecutor further advised the jury that he was not permitted to comment on the credibility of the witnesses and that the jury is the finder of facts. The first time the prosecutor used the word victim, he did so in the context of whether the victim was believable. He stated: “Now, in this case, as you know by now, the gun that was used in this incident, if you believe the victim, William Castaneda, was obviously a BB gun; it was an air gun. ” The prosecutor then stated that there were two sides to the stoiy, and then recounted his recollection of the “victim’s” testimony. The prosecutor argued that the police work and evidence substantiated the “victim’s” testimony.

“[A]s the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper.” (Internal quotation marks omitted.) State v. Nelson, 105 Conn. App. 393, 415, 937 A.2d 1249, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). “It is well settled that, in addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device is improper. . . . The occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) State v. Warholic, supra, 278 Conn. 362-63. In this case, defense counsel did not object to the prosecutor’s argument when it was given. The issue came up the following day in the context of the defendant’s motion for a mistrial.

Although there are limits to the use of rhetorical devices to which a prosecutor may resort, this is not a case in which the jury likely was moved by sympathy toward Castaneda. Cf. State v. Cortes, 276 Conn. 241, 885 A.2d 153 (2005) (young woman complainant allegedly assaulted and kidnapped by defendant). Here, there was an evidentiary basis for the jury to conclude that Castaneda was the victim of a robbery and therefore such evidence was proper grist for the prosecutor’s final argument. See State v. Warholic, supra, 278 Conn. 367. Jurors understand the respective roles of the prosecutor and defense counsel. It should not be assumed that jurors will be unduly influenced by the prosecutor’s use of the word victim. We therefore conclude, under the facts of this case, that the prosecutor’s reference to Castaneda as the victim was appropriate, not the expression of a personal opinion, and did not constitute prosecutorial impropriety that denied the defendant a fair trial.

C

The defendant’s third claim with respect to the court’s and prosecutor’s referring to Castaneda as the victim concerns the court’s denial of the motion for a mistrial. We review claims of a court’s ruling on a motion for a mistrial under the abuse of discretion standard. State v. Hamlett, 105 Conn. App. 862, 872, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008). “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.” (Internal quotation marks omitted.) Id.

After the court instructed the jury, the defendant filed a motion for a mistrial in which he claimed that he had been denied a fair trial by the use of the word victim by both the court and the prosecutor with respect to Castaneda. The court denied the motion for a mistrial, noting that any prejudice may be ameliorated by a curative instruction. The court intended to give the jury a curative instruction and, in fact, did so. Defense counsel acceded to the court’s providing a curative instruction to the jury. See footnote 10.

For the reasons set forth in parts I A and B, we conclude that the court did not abuse its discretion by denying the defendant’s motion for a mistrial. The jury’s verdict itself belies any claim that the references by the court or the prosecutor to Castaneda as the victim deprived the defendant of a fair trial. In addition to the conspiracy count, the defendant was charged with two counts of robbery in the second degree. The jury found the defendant not guilty of one of the counts of robbery in the second degree. See footnote 3. That fact leads us to believe that the jury carefully weighed the evidence and applied the law as it was instructed. We conclude that the defendant was not denied the right to a fair trial by the court or the prosecutor when they referred to Castaneda as the victim.

II

The defendant also claims that the court improperly failed to apply Wharton’s rule to his conviction of conspiracy to commit robbery in the second degree and robbery in the second degree. The defendant argues that because robbery in the second degree requires the participation of two people for its commission, as does his conviction of conspiracy to commit robbery in the second degree, Wharton’s rule applies. We do not agree with the defendant’s claim.

The United States Supreme Court addressed the history and application of Wharton’s rule in Iannelli v. United States, 420 U.S. 770, 771, 773, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). Our own Supreme Court relied heavily on Iannelli in State v. Acklin, 171 Conn. 105, 368 A.2d 212 (1976). Those cases guide our decision. The defendant’s claim raises a question of law and, thus, we apply the plenary standard of review. See, e.g., State v. Long, 268 Conn. 508, 520-21, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S. Ct. 424, 160 L. Ed. 2d 340 (2004).

“As a general rule, the double jeopardy clause does not bar prosecution of a defendant for both conspiracy to commit a substantive offense and the substantive offense itself, and, in most cases, separate sentences can constitutionally be imposed upon conviction.” State v.Acklin, supra, 171 Conn. 116. “Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act. . . . Unlike some crimes that arise in a single transaction . . . the conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a single punishable act. ...

“The consistent rationale . . . rests on the very nature of the crime of conspiracy. This [c]ourt repeatedly has recognized that a conspiracy poses distinct dangers quite apart from those of the substantive offense. . . . The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish.” (Citations omitted; internal quotation marks omitted.) Iannelli v. United States, supra, 420 U.S. 777-79. “[Agreement remains the essential element of the crime [of conspiracy], and serves to distinguish conspiracy from aiding and abetting which, although often based on agreement, does not require proof of that fact . . . and from other substantive offenses as well.” (Citation omitted.) Id., 777 n.10.

“Wharton’s Rule does not rest on principles of double jeopardy .... Instead, it has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary.” (Citations omitted.) Id., 782. “In its most recent formulation, Wharton’s rale reads as follows: ‘An agreement by two persons to commit a crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.’ 1 Wharton, Criminal Law & Procedure (Anderson Ed.) § 89, p. 191.” State v. Acklin, supra, 171 Conn. 117.

“The classic Wharton’s Rule offenses—adultery, incest, bigamy, duelling—are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than on society at large. . . . Finally, the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert. It cannot, for example, readily be assumed that an agreement to commit an offense of this nature will produce agreements to engage in a more general pattern of criminal conduct.” (Citation omitted; emphasis added.) Iannelli v. United States, supra, 420 U.S. 782-84.

The substance of the defendant’s claim on appeal is that because two participants were necessary for a conviction of robbery in the second degree, he could not also be convicted of conspiracy. In other words, he argues, the substantive crime flowed from the agreement of the two participants. The defendant’s claim misconstrues Wharton’s rule. The state charged the defendant with conspiracy to commit robbery with one or more persons. The evidence demonstrated that Rosa and Alicia, in addition to the defendant, participated. Rosa may have pointed a gun at Castaneda, but the gun was found later on Alicia’s person. “[A] well-recognized exception to Wharton’s rule renders it inapplicable where more parties participate in the conspiracy than are required for the commission of the substantive offense.” State v. Acklin, supra, 171 Conn. 118. Two people were necessary to commit robbery in the second degree in violation of § 53a-135 (a) (1), but three people participated in the conspiracy. In addition, the rationale underlying Wharton’s rule does not apply to crimes against society at large. In this case, Castaneda was not a member of the conspiracy, and the robbery was constituted as an. offense not only against him, but also against society at large. For these reasons, the defendant’s claim as to Wharton’s rule fails.

Ill

The defendant’s third claim is that the court denied him the right to confront witnesses against him and to present a defense by not permitting him to question Castaneda as to whether he used drugs at any time other than on or near the night in question. The issue presented by the defendant is an evidentiary question, not a constitutional one. We conclude that the court did not abuse its discretion by limiting the defendant’s inquiry into Castaneda’s drug use.

The following facts are relevant to the defendant’s claim. Prior to trial, the state filed a motion to preclude the defendant from eliciting uncharged misconduct evidence from Castaneda that was not relevant to his veracity. At the time of trial, Castaneda was twenty-two years old. The defendant sought to question Castaneda about his drug use at or about the time of the incident and when he was in high school and was acquainted with Rosa. The theory of defense was that no robbery had occurred, but an incomplete drug transaction had taken place. The defendant sought to use Castaneda’s alleged prior drug usage to prove that Castaneda purchased drugs from Rosa on the night in question. The court ruled that Castaneda’s use of drugs on or about February 5, 2005, was relevant and admissible but precluded the defendant from eliciting evidence about Castaneda’s alleged prior use of drugs as such evidence was too remote.

“The federal constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.” (Internal quotation marks omitted.) State v. Morrissette, 105 Conn. App. 743, 747, 939 A.2d 621, cert. denied, 286 Conn. 918, 945 A.2d 978 (2008). “If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence [is] properly excluded.” (Internal quotation marks omitted.) State v. DeJesus, 270 Conn. 826, 838, 856 A.2d 345 (2004). The party proffering the evidence bears the burden of establishing its relevance. State v. Gerald W., 103 Conn. App. 784, 794 n.7, 931 A.2d 383, cert. denied, 284 Conn. 933, 935 A.2d 152 (2007).

“When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes.” (Internal quotation marks omitted.) State v. McSwain, 105 Conn. App. 258, 271-72, 938 A.2d 595, cert. denied, 286 Conn. 915, 945 A.2d 978 (2008).

“Determining whether evidence is relevant and material to critical issues in a case is an inherently fact-bound inquiry. ... As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, supra, 270 Conn. 837-38. “Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . [T]he trial court’s ruling on the relevancy of . . . evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Morrissette, supra, 105 Conn. App. 748.

We agree with the court that whether Castaneda used drugs when he was in high school was not relevant to whether Castaneda purchased drugs from Rosa on the night in question. When asked, Castaneda denied using drags. It was for the jury to decide if Castaneda was telling the truth. We conclude that the court did not abuse its discretion or deny the defendant a constitutional right.

The judgment is affirmed.

In this opinion the other judges concurred.

       Wharton’s rule, named for Francis Wharton, is “a doctrine of criminal law enunciating an exception to the general principle that a conspiracy and the substantive offense that is its immediate end are discrete crimes for which separate sanctions may be imposed.” Iannelli v. United States, 420 U.S. 770, 771, 773, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975).

       The defendant was charged in a bill of particulars with two counts of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and (2) and one count of conspiracy to commit robbery in the second degree in violation of General Statutes § 53a-48 (a).

       The jury found the defendant not guilty of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2).

       Although the defendant alleged violations of his state and federal constitutional rights, he briefed the issue only under the federal constitution. We therefore consider his state constitutional claim abandoned and do not address it. See, e.g., State v. Nieves, 106 Conn. App. 40, 44 n.5, 941 A.2d 358, cert. denied, 286 Conn. 922, 949 A.2d 482 (2008).

       At the time of trial, our Supreme Court had not yet rendered its decision in Cortes. When ruling on the defendant’s motion, the trial court noted that this court’s decision in Cortes was on appeal. Our Supreme Court affirmed the decision of this court on an unrelated question concerning the admission of certain evidence. State v. Cortes, 276 Conn. 241, 885 A.2d 153 (2005).

       The court’s recollection was accurate. Defense counsel argued, in part, that “the victim’s not on trial.”

       The defendant took an exception to the court’s curative instruction because the court did not explicitly state that its earlier reference to Castaneda as the victim was not an endorsement of Castaneda’s credibility and that the court did not believe that Castaneda was a victim.

       Our Supreme Court granted the state’s petition for certification to appeal on two grounds. Only the first question is related to the issues in this appeal. “1. Did the Appellate Court properly conclude that the trial court’s instructional references to the complainant as ‘the victim’ deprived the defendant of his right to a fair trial?” State v. Cortes, 271 Conn. 917, 859 A.2d 571 (2004). Our Supreme Court affirmed this court’s judgment on the basis of the second certified question that was of an evidentiary nature and stated that it “need not address the first certified question . . . .” State v. Cortes, 276 Conn. 241, 249, 885 A.2d 153 (2005). Nevertheless, our Supreme Court, included the following footnote in its opinion.
      “The trial court’s seventy-six references to the complainant as the Victim’ were neither isolated nor sporadic, but pervasive. The term ‘victim’ commonly is understood to mean the person harmed by a crime or other injurious event. See American Heritage College Dictionary (4th Ed. 2002) (defining victim as ‘[o]ne who is harmed or killed by another’). In the context of the present case, the jury could have drawn only one inference from its repeated use, namely, that the defendant had committed a crime against the complainant. For this reason, we agree with those courts that have deemed references to the complainant as the ‘victim’ inappropriate where the very commission of a crime is at issue.” State v. Cortes, supra, 276 Conn. 249 n.4. The defendant in Cortes had been convicted of one count of unlawful restraint in the first degree and one count of assault in the second degree. Id., 242.

       The court again instructed the jury on the presumption of innocence, that the jury was to determine whether a crime had been committed against Castaneda, who was the complainant, and that the jury was to ignore any other reference to Castaneda. Twice the court instructed the jury on the presumption of innocence: once in its initial charge and again in its curative instruction.

       We also note that during argument on the defendant’s motion for a mistrial, the defendant acceded to the court’s giving a curative instruction if the motion for a mistrial was denied. Defense counsel asked the court to grant the motion for a mistrial but also stated that “[i]n lieu of a mistrial, [if] the court did not grant it, I understand the court has a proposed instruction, and we certainly would accede to that proposed instruction, although our obvious desire is for a mistrial based on the egregious harm.”

       The court instructed the jury that the arguments of counsel reflected their view of the evidence.

       The defendant raised the applicability of Wharton’s rule at sentencing. Following the argument of counsel, the court declined to apply Wharton’s rule in this case.

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present. . .
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
      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.”

       Section 12.4 (c) (4) of 2 W. LaFave, Substantive Criminal Law (2d Ed. 2003), provides pertinent examples of the Wharton’s rule applicability. “ [T]he prevailing view is that the Wharton rale does not apply when the number of conspirators exceeds the essential participants in the contemplated crime. Thus, while it is not a conspiracy for A and B to agree to the commission of adultery involving only themselves, if G conspires with A and B for the commission of adultery by the latter two then all three are guilty of conspiracy. So too, there is no conspiracy if D agrees with F to give F a bribe, but it is otherwise if D and E agreed to bribe F.

      “A somewhat different limitation on the Wharton rale is this: if the law defining the substantive offense does not specify any punishment for one of the necessary participants, then it is no bar to a conspiracy conviction that only the essential participants were involved. . . . For example, if A agrees withU to give him an illegal rebate, but the applicable statute imposes a penalty only on the giver of the rebate, then A and B may be convicted of conspiracy. Or, if C agrees to make an illegal sale of liquor to D, but the statute penalizes only the seller, C andD are guilty of conspiracy.” (Emphasis in original.) Id., § 12.4 (c) (4), pp. 319-20.

       Castaneda was asked by both the defendant and the state if he used drugs at about the time of the robbery. He denied using drugs at that time. Furthermore, although he previously had known Rosa, Castaneda and Rosa did not go to high school together.