author: DRANGINIS, J.

text:
    CARLOS LORENZI GUADALUPE v. COMMISSIONER OF CORRECTION
    (AC 20172)
    Landau, Spear and Dranginis, Js.

      Argued March 20, 2001
    officially released February 26, 2002

      Felix Esposito, for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (respondent).
   Opinion

DRANGINIS, J.

The petitioner, Carlos Lorenzi Guadalupe, appeals from the judgment of the habeas court denying his petition for writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) concluded that his defense counsel was effective in representing him, (2) concluded that his plea of guilty was knowing and voluntary, and (3) denied his motion to set conditions of release. We affirm the judgment of the habeas court.

The facts underlying the petitioner’s arrest and subsequent plea are as follows. In October, 1994, the petitioner was arrested pursuant to an arrest warrant in connection with a shooting that occurred at a bar in Bridgeport in which the victim was injured. Searches of the petitioner, his vehicle and his residences led to the discovery of narcotics and a firearm. The petitioner was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and three counts of possession of narcotics with intent to sell in violation of General Statutes § 2 la-277. The petitioner was also charged in federal court with possession of a firearm by a felon as a result of the incident.

Attorney Dante R. Gallucci was appointed to represent the petitioner on the state charges. The petitioner faced a maximum penalty of life in prison. Initially, the plea bargaining process included discussions that the petitioner could serve a twenty year or thirty year sentence. Neither a twenty year nor a thirty year sentence, however, was acceptable to the petitioner at that time.

On August 10,1995, attorney Michael O. Sheehan was appointed to represent the petitioner on the federal charge. Gallucci learned of the pending federal charge on or about September 11, 1995. Sheehan informed Gallucci that because of the federal sentencing guidelines, the petitioner likely would be sentenced to ten years for the federal charge if he pleaded guilty or was found guilty after trial. With the likelihood of incarceration for the federal charge, Gallucci and the petitioner became more willing to plea bargain.

Sheehan and Gallucci began considering the possibility that the federal and state sentences could run concurrently. Both attorneys and the state’s attorney understood that for the petitioner to receive a concurrent sentence, the federal case would have to be resolved first. The state further agreed that if the federal ten year sentence was imposed first, the state would not object to a concurrent twenty year sentence for a total effective sentence of twenty years. The petitioner found that sentence satisfactory.

Thereafter, on September 18, 1995, represented by Gallucci, the petitioner entered pleas of guilty on the state charges. On October 12, 1995, the petitioner pleaded guilty to the federal charge. After his federal sentence was imposed, in accordance with the plea agreement, the state court sentenced him to a term of imprisonment of twenty years to be served concurrently with the federal sentence. The petitioner, however, was not released into federal custody prior to the imposition of his state sentence. As a result, the petitioner was required to complete his state sentence before his federal sentence could begin to run. Thus, the petitioner is required to serve a twenty year state sentence, then a ten year federal sentence for a total effective sentence of thirty years, rather than the twenty year sentence for which he claims to have bargained.

On January 6, 1999, the petitioner filed an amended petition for a writ of habeas coipus. The habeas court denied the petition and granted certification to appeal. This appeal followed.

I

The petitioner first claims that the court improperly concluded that Gallucci, his defense counsel on the state charges, rendered effective assistance. Specifically, the petitioner claims that counsel failed to effectuate the procedures necessary to fulfill the petitioner’s plea bargain, i.e., have the petitioner transferred to federal custody, or, in the alternative, that counsel failed to be sufficiently familiar with the necessary procedures prior to advising the petitioner. The petitioner argues that he was prejudiced as a result because his plea agreement was not given effect. Rather than serve twenty years concurrently, he must serve the federal and state sentences consecutively for a total of thirty years. We affirm the habeas court’s judgment.

We must first consider the standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn. App. 313, 316, 759 A.2d 118 (2000). As set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), “[a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.” See also Holley v. Commissioner of Correction, 62 Conn. App. 170, 172-73, 774 A.2d 148 (2001); Henry v. Commissioner of Correction, supra, 316-17.

“The first component of the Strickland test, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citations omitted; internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 71-72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001).

When claims of ineffective assistance of counsel arise from the plea negotiation process, “to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Internal quotation marks omitted.) Daniel v. Commissioner of Correction, 57 Conn. App. 651, 665, 751 A.2d 398, cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000).

The court denied the petition for a writ of habeas coipus on the ground that Gallucci was not the petitioner’s counsel in the federal court, nor did he have any control over what occurred there. The court also indicated that Gailucci’s “effort to get a state plea bargain of twenty (20) years was effective” and that it “should not interfere with the agreed sentence of the state court . . . .” Therefore, the court concluded that Gailucci’s performance did not fall below an objective standard of reasonableness. Our review of the record and briefs supports the court’s conclusion.

Gallucci negotiated with the state’s attorney a plea agreement of twenty years to run concurrently with the petitioner’s federal sentence. Gallucci had no control over the federal sentencing and, therefore, relied on Sheehan to effectuate the federal sentence such that the petitioner could receive a concurrent sentence. Gallucci, unlike Sheehan, was unaware of the fact that the petitioner had to be released to federal custody to have the federal sentence run concurrently with the state sentence. In fact, Gallucci was not informed by Sheehan until November, 1995, after the petitioner had entered his guilty pleas in state court, that the petitioner had to be released to federal custody to effectuate the concurrent time. The record makes clear, however, that at the time the petitioner entered his plea, the court, both attorneys and the petitioner knew that a concurrent federal sentence could not be part of his plea agreement in the state court.

Gallucci also made attempts to have the petitioner transferred to federal custody. Both the state’s attorney and the court were unwilling to release the petitioner, who had previously failed to appear and had a prior conviction of manslaughter. Attempts to contact the petitioner’s newly appointed federal public defender also proved futile. Gallucci then sought to withdraw the petitioner’s plea. The motion, however, was denied on the ground that the state had honored the plea agreement. In his final attempt, Gallucci contacted the federal public defender and informed him that if he could get the federal government to accept the petitioner, that he would make every effort to get the petitioner released from state custody. Both the state and federal government, however, were either unwilling or unable to effectuate the transfer.

In this case, there was no evidence presented that the petitioner received ineffective assistance from Gallucci. Gallucci represented the petitioner only in state court. We therefore determine that the court properly concluded that the petitioner failed to carry his burden of proof requiring him to establish that Gallucci provided ineffective assistance in his representation of the petitioner on the state charges.

II

The petitioner next claims that the court improperly concluded that his guilty pleas were entered knowingly and voluntarily. “[F]or aplea of guilty tobe constitutionally valid, it must be equally voluntary and knowing .... [I]t cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. . . . An understanding of the law in relation to the facts must include all relevant information concerning the sentence. The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Collins, 176 Conn. 7, 9-10, 404 A.2d 871 (1978). The petitioner contends that his plea was not knowingly and voluntarily entered because he entered his plea on the mistaken belief that he would be serving a total effective sentence of twenty years, rather than thirty years. We decline to review his claim.

The state argues that the petitioner’s claim that his plea was not knowing and voluntary is not reviewable by this court because the petitioner did not properly pursue the claim on direct appeal. The validity of guilty pleas can be challenged before sentencing and on direct appeal. The petitioner, however, first attacked his plea in his habeas petition.

The appropriate standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved at trial is the Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); standard of “ ‘cause and prejudice.’ ” Johnson v. Commissioner, 218 Conn. 403, 412-13, 589 A.2d 1214 (1991). “[Tjhis court strongly disfavor[s] collateral attacks upon judgments because such belated litigation undermines the important principle of finality .... Therefore, we will review the claim only where the petitioner demonstrates good cause for the failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation.” (Citation omitted; internal quotation marks omitted.) Bowers v. Commissioner of Correction, 33 Conn. App. 449, 451, 636 A.2d 388, cert. denied, 228 Conn. 929, 640 A.2d 115 (1994).

“Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.” Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). Because “[cjause and prejudice must be established conjunctively,” we may dispose of this claim if the petitioner fails to meet either prong. Bowers v. Commissioner of Correction, supra, 33 Conn. App. 452.

Initially, the court did not make a finding regarding cause and prejudice. This court typically remands a case where there is evidence of cause and prejudice, and the habeas court has failed to make a finding on the record regarding cause and prejudice. See Giannotti v. Warden, 26 Conn. App. 125, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992). In this case, however, the petitioner had filed a motion for articulation of the habeas court’s ruling. The court denied the motion, and this court denied the petitioner’s motion for review of the habeas court’s denial. After oral argument, this court vacated, in part, its order denying the relief requested and ordered the habeas court to articulate whether it found that the petitioner had met the cause and prejudice test set forth in Wainwright v. Sykes, supra, 433 U.S. 72.

In its articulation, the court stated that “the petitioner’s plea was not unknowingly entered because, contrary to his claim, no assurances were made to him that his sentences would be concurrent, and he was aware that unless the mechanics of transfer were successful, he would be serving twenty years under state jurisdiction.” Ultimately, the court concluded that “[t]he petitioner failed to show actual prejudice since the sentence received was in accordance with his pleas although the mechanics hoped for by the petitioner failed.”

We agree with the court’s conclusion that the petitioner could not have been prejudiced by counsel’s failure to raise the claim on direct appeal because the record supports the court’s finding that he was not mistaken about the sentence he would receive under state jurisdiction. We therefore cannot conclude that he was actually prejudiced by the alleged constitutional violation.

Ill

The petitioner finally claims that the court improperly denied the motion to set conditions of release. We disagree.

At the habeas hearing, the petitioner filed a pleading titled, “Motion to Set Conditions of Release,” asking the court to release him pending the litigation of the habeas petition. The petitioner argued that such a release would have allowed him to be discharged to the federal detainer and thereby allowed the state sentence to run concurrently with the federal sentence. The petitioner did not seek a release from custody altogether; rather, he sought a release to the federal detainer.

While the court did not render a decision on the motion, it is clear that the motion was denied, as the petitioner never was released. During the hearing on the motion, the court expressed its reservation about releasing the petitioner because federal authorities would not accept custody of him on their detainer until the state had completed its jurisdiction over him. Furthermore, there was some question as to whether the court had the power to release a sentenced prisoner. In his motion and at the hearing on the motion, the petitioner argued that the court has inherent authority to release a prisoner from state custody. On appeal, the petitioner has failed, however, to cite any authority by which the court could set conditions of release.

Our Supreme Court has held that in the context of a habeas corpus proceeding, the Superior Court may, in the exercise of its discretion, admit a petitioner to bail. Carino v. Watson, 171 Conn. 366, 371, 370 A.2d 950 (1976), citing Winnick v. Reilly, 100 Conn. 291, 123 A. 440 (1924). In Carino, the plaintiff, who had been arrested on a governor’s extradition arrest warrant, was admitted to bail pending a hearing on his petition for a writ of habeas corpus. On appeal, the court held that “[t]he power to admit to bail after conviction is not a statutoiy but a common-law power . . . bail is then a matter of absolute discretion, to be exercised by the court, however, with great caution, and rarely allowed when the crime is serious.” (Internal quotation marks omitted.) Carino v. Watson, supra, 368-69. We assume, without deciding, that the habeas court had the authority to release the petitioner in this case, and we conclude that as in Carino, the proper standard by which to review the habeas court’s denial of the petitioner’s motion to set conditions of release is the abuse of discretion standard.

“Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Relliford, 63 Conn. App. 442, 447, 775 A.2d 351 (2001). We conclude, assuming that the court had the power to release the petitioner, that the court did not abuse its discretion in deciding not to release him in light of the risk of flight, the severity of the crime charged and the uncertainty that the petitioner would be released directly to federal custody.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state also nolled a charge relating to possession of the handgun.

       The petitioner was sentenced in federal court on May 3, 1996. He was sentenced in state court on May 31, 1996.

       The following colloquy occurred:
      “The Court: All right. Do either of the lawyers know of any reason why the court should not accept the pleas? . . .

        “[Defense Counsel]: ... I would indicate also for the purposes of preserving the record . . . that [the petitioner] does have the federal indictment pending. We have met today with the public defender, Michael Sheehan, who’s representing him on that, and my understanding was that the state would not object to the sentences being run concurrent, and my understanding from Mir. Sheehan was that the federal government would not have that objection. So, we’re aware of it, and we understand it can’t be part of this deal, but . . . my client is aware of what the situation is, and I’ve advised my client.
      “The Court: Okay. I was going to ask: He’s fully aware of that situation and how you plan to have the federal matter resolved?
      “[Defense Counsel]: Yes, Your Honor. We met with the public defender today and discussed that, both he and I, as to how that was going to [get] resolved. My understanding was that the state would not object to it being run concurrent."

       We express no opinion as to whether the petitioner has a remedy in federal court.

       The petitioner argues that whether his plea was knowing and voluntary could not have been answered without the benefit of an evidentiary hearing and, therefore, his claim properly was brought to the habeas court. We reject the petitioner’s argument that the habeas court was the appropriate venue for pursuing his claim that his plea was invalid.
      It is weE estabEshed that where a court denies a defendant’s motion to withdraw his plea, the defendant may request an evidentiary hearing on the motion. The defendant did not request such a hearing in this case. The evidentiary hearing typicaEy provides the record necessary for this court to review the defendant’s claim on direct appeal that his plea was involuntary or unknowing. The defendant may raise the denial of the motion for an evidentiary hearing as a claim of error in an appeal from his conviction. The appeEate court, however, may, in some cases, hear the direct appeal of the motion for withdrawal even where no evidentiary hearing is requested.
        State v. Johnson, 253 Conn. 1, 50 n.53, 751 A.2d 298 (2000). The petitioner cannot fail to seek an evidentiary hearing on a motion for withdrawal of his plea and then bypass his direct appeal by obtaining a hearing in the habeas court.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES DOWNING
    (AC 20826)
    Foti, SchaUer and Cretella, Js.

      Argued September 18, 2001
    officially released February 26, 2002

      Martin Zeldis, senior assistant public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, James Downing, appeals from the judgment of conviction, rendered after a jury trial, of capital felony in violation of General Statutes § 53a-54b (9). On appeal, the defendant claims that the trial court improperly (1) abused its discretion in allowing a criminologist to testify concerning blood spatter on the defendant’s coat and (2) denied the defendant’s motion for a mistrial based on prosecutorial misconduct during closing arguments to the jury. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On January 1, 1996, the defendant was arrested and ultimately charged with capital felony, felony murder, robbery in the first degree and larceny in the second degree. The defendant waived his probable cause hearing and pleaded not guilty to all of the charges against him.

On October 27,1998, a jury of twelve found the defendant guilty of capital felony and not guilty of the other charges. After denying the defendant’s motions for a new trial and for a judgment of acquittal, the trial court sentenced the defendant to life imprisonment without the possibility of release. The defendant appealed from his conviction to our Supreme Court, which transferred the appeal to this court on May 31, 2000. Additional facts are set forth as necessary.

I

The defendant claims first that the court abused its discretion in allowing a criminologist to testify concerning blood spatter on the defendant’s coat. The defendant argues that because the criminologist’s opinion relied in part on a presumptive test for blood, her testimony should have been barred pursuant to State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990). The state argues that Moody is distinguishable and that the criminologist’s testimony was admitted properly because it was not based on the presumptive test for blood alone, but on three other factors as well.

The following facts are relevant to this claim. At the time of his arrest, the defendant was wearing a coat, which the police seized and sent to the state forensic laboratory for testing. In the winter of 1996, Beryl Nov-itch, a state forensic biologist specializing in blood and body fluid analysis, examined the defendant’s coat and identified at least two human bloodstains on the coat; one was on the back exterior and the other on the front exterior of the coat. The bloodstains matched the blood of both the defendant and the victim, and approximately 45 percent of the general population, but did not yield more specific results. DNA tests of the bloodstains conducted by Carol Scherczinger at the state forensic laboratory also were inconclusive. In August, 1998, Deborah Messina, a criminologist with the state forensic laboratory who analyzes blood spatter patterns, examined the defendant’s coat. When she examined the coat, Messina knew of the findings of the previous examinations conducted by Novitch and Scherczinger, including the fact that Novitch had identified conclusively two stains on the defendant’s coat as bloodstains. Despite the fact that Novitch had cut the bloodstains out of the coat for testing, Messina knew the location of the bloodstains.

In her examination of the coat, Messina found multiple stains that neither Novitch nor Scherczinger had identified as blood (unidentified stains). Messina testified as to her opinion that some of those unidentified stains were blood based on the following factors: (1) their color; (2) their shape and pattern; (3) their location in the same areas of the coat as the two bloodstains identified conclusively by Novitch; and (4) their positive results in a presumptive screening test, which, although not conclusive, indicated that the stains could be human blood. The defendant objected to Messina’s conclusory testimony that the unidentified stains were blood, claiming that Moody prohibits testimony based on a presumptive screening test. The court ruled that Messina’s testimony was admissible because it was not based solely on the presumptive screening test, as was the case in Moody. The defendant now appeals from his conviction, arguing that the court’s admission of Messina’s conclusions in their entirety was an abuse of discretion. We disagree.

Before reaching the merits of the defendant’s claim, we set forth the standard by which we review the court’s admission of Messina’s testimony. “Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Russo, 62 Conn. App. 129, 133, 773 A.2d 965 (2001).

With that standard in mind, we turn now to the merits of the defendant’s claim and, specifically, to his reliance on Moody. In Moody, our Supreme Court reversed the defendant’s murder conviction after concluding that the trial court had abused its discretion in admitting into evidence testimony regarding the results of a presumptive test for blood performed on a stain found on the sole of the defendant’s shoe. State v. Moody, supra, 214 Conn. 628. The defendant sought unsuccessfully to preclude a state’s witness from testifying that a stain on the sole of his shoe passed a presumptive test for blood. Id. Over the defendant’s objection, the state’s witness testified as to the positive test results and further explained that they meant that the stain could have been human blood, animal blood or something other than blood. Id., 627-28.

Our Supreme Court concluded that “the result of the ‘presumptive test for blood’ had no probative value whatsoever” because the test “did nothing toward establishing the likelihood of the presence of human blood on the sole of the defendant’s shoe.” Id., 628. The Supreme Court held that the trial court had abused its discretion in denying the defendant’s motion in limine because the test result was irrelevant. Id.

We believe that the facts in the present case are sufficiently distinguishable from those in Moody so as to render Moody inapplicable here. In Moody, the witness’ testimony was held to be inadmissible because it had no probative value and was therefore irrelevant. Id. In the present case, we are not persuaded that Messina’s testimony had no probative value.

As the court noted in Moody, “[t]he first test of the admissibility of any evidence is whether it is relevant. . . . [E]vidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . . 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.) Id.

Applying the test of relevance to the facts in the case before us, we conclude that the court did not abuse its discretion in admitting Messina’s conclusions that the unidentified stains on the defendant’s coat were blood spatter stains. Messina’s conclusions were supported by facts already admitted into evidence and corroborated the state’s theory, which was based on eyewitness testimony, that the defendant beat the victim to death while wearing the coat.

Most significantly, other forensic tests in this case conclusively identified bloodstains on the defendant’s coat. Both in his brief and during oral argument, the defendant conceded that if the unidentified stains fell within a spatter pattern that included bloodstains, and if Messina’s conclusions relied on that fact, then her testimony would have been admissible. The defendant contends that the facts in the record do not require that concession. We believe that they do. Messina testified that, in her expert opinion, the bloodstains on the coat formed spatter patterns containing many of the unidentified stains. Messina testified further that her conclusions also were based on the color and shape of the unidentified stains and the fact that the presumptive test confirmed that the unidentified stains could be blood. Thus, unlike in Moody, the presumptive test here had probative value because its results supported Messina’s conclusions, which were otherwise based on scientifically proven facts already in the record. Because we conclude that the court properly admitted Messina’s testimony, we need not reach the issue of harm addressed in Moody. We conclude, therefore, that the court did not abuse its discretion in admitting the testimony.

II

The defendant next claims that the court abused its discretion in denying his motion for a mistrial, which was based on prosecutorial misconduct during closing arguments to the jury. Specifically, the defendant argues that the prosecutor engaged in misconduct and denied the defendant his due process rights under the fifth amendment to the United States constitution by (1) alluding to the defendant’s failure to testify or to present evidence, (2) personalizing his arguments to the jurors, (3) appealing to the emotions of the jurors, (4) arguing that a witness was afraid of the defendant when she testified, in violation of an earlier court ruling, and (5) arguing to the jurors that they were “responsible for justice in our society.” In response, the state argues that none of the challenged statements rises to the level of prosecutorial misconduct. Alternatively, the state maintains that even if some of the prosecutor’s remarks were improper, the court’s jury instructions sufficiently cured any possible prejudice to the defendant. We conclude that while some of the prosecutor’s remarks may have been inappropriate, none rises to the level of prosecutorial misconduct constituting a denial of the defendant’s due process rights or otherwise requires a reversal of his conviction.

In our resolution of this claim, we have considered the following facts. During closing arguments to the jury, the prosecutor made five remarks that the defendant argues constituted prosecutorial misconduct. Defense counsel timely objected to each remark, and the court overruled each objection. Following the state’s closing argument, the defendant moved for a mistrial based on the prosecutor’s alleged misconduct. The defendant also requested that the court give curative jury instructions specific to the prosecutor’s remarks. The court denied both the defendant’s motion for a mistrial and request for a curative instruction.

Before we address the prosecutor’s challenged remarks, we articulate the standard that governs our review of the trial court’s denial of the defendant’s motion for a mistrial based on prosecutorial misconduct. First, “[t]he principles that govern our review of a trial court’s ruling on a motion for a mistrial are well established. Appellate review of a trial court’s decision granting or denying a motion for a [mistrial] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In [its] review of the denial of a motion for mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 257, 780 A.2d 53 (2001).

We also note that “[i]n analyzing claims of prosecutorial misconduct . . . we ask whether the conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . The standard that we follow in analyzing constitutional due process claims that allege prosecutorial misconduct is the fairness of the trial rather than the culpability of the prosecutor’s conduct.” (Citation omitted; internal quotation marks omitted.) Id., 262.

Our Supreme Court has instructed us to focus on several factors in determining whether prosecutorial misconduct was so serious as to amount to a denial of due process. “Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) Id., 262-63. Cognizant of the foregoing standard, principles and factors, we address each challenged remark in turn.

A

The first remark challenged by the defendant was made in the prosecutor’s closing argument. Before the prosecutor completed the argument, defense counsel objected, arguing that the prosecutor made “a comment about the defendant not putting on any evidence.” The prosecutor responded that the remark was not made in that context, and the trial court agreed, overruling the defendant’s objection, to which the defendant took an exception. Following the prosecutor’s closing argument, the defendant again challenged the remark in his motion for a mistrial, which the trial court denied. The court also refused the defendant’s request for a curative instruction.

We begin our analysis by recognizing that the state is not prohibited from “calling to the jury’s attention any portion of the evidence that stands uncontradicted . . . .” (Internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 174, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999). Only when a prosecutor’s comment “focuses the attention of the jury on the failure of the defendant to testify” does it become objectionable. State v. Evans, 165 Conn. 61, 71, 327 A.2d 576 (1973). “The ultimate test of whether a prosecution argument indirectly and impermissibly comments on the defendant’s failure to testify is whether, because of its language and context, the jury would naturally and necessarily interpret it as comment on the defendant’s failure to testify.” (Internal quotation marks omitted.) State v. Kluttz, 9 Conn. App. 686, 706, 521 A.2d 178 (1987).

The prosecutor in the present case simply focused the jury’s attention on those portions of the evidence that were uncontradicted. We are not persuaded that the jury naturally and necessarily interpreted the remark as commenting on the defendant’s failure to testify. The entire remark concerned the defendant’s overall lack of rebuttal evidence, not his specific failure to testify. Moreover, the trial court properly instructed the jury that the defendant had “the absolute right . . . not to testify” and that the jury “must not draw any inference unfavorable to [the defendant] because he ha[d] not testified.” The fact that the jury acquitted the defendant on three of the four charges against him persuades us that it did not draw an unfavorable inference against him because he did not testify. Accordingly, we conclude that the prosecutor’s remark was not improper and therefore did not constitute prosecutorial misconduct.

B

The defendant next challenges a portion of the prosecutor’s argument, claiming that the prosecutor improperly personalized his remarks. The court disagreed, overruling the defendant’s objection without comment. Following the prosecutor’s closing argument, the defendant again challenged the remarks in his motion for a mistrial, which the trial court denied. The court also refused the defendant’s request for a curative instruction.

Without citing any supporting precedent, the defendant argues that the remarks were prejudicial and constituted personalized comment to the jury. We disagree. We conclude that the remarks were nothing more than a permissible appeal to the jurors’ common sense. State v. Chasse, 51 Conn. App. 345, 365, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). It was not improper and did not constitute prosecutorial misconduct.

c

The defendant next argues that the prosecutor improperly appealed to the emotions, passions, sympathies and prejudices of the jurors during rebuttal closing argument. Following the prosecutor’s closing argument, the defendant challenged the remarks in his motion for a mistrial, arguing that the prosecutor’s “comments about [the prosecutor’s] mother passing away is as—is outrageous in terms of reaching the emotions of the jurors, and even he had to react while he was saying it, ‘this is not for sympathy,’ because in fact, that is what it was directed toward.” The trial court denied the defendant’s motion and his request for a curative instruction.

At sentencing, the defendant again moved for a mistrial, citing the prosecutor’s remarks about his mother’s death as alleged misconduct. The court denied the defendant’s motion because “the court’s observations of the jury and the jury’s decisions . . . confirmed] the fact that the jury was not moved by any feeling of sympathy toward [the prosecutor] in spite of his argument.”

The defendant has identified the remark concerning the prosecutor’s mother’s death as the prosecutor’s most egregious conduct because it appealed to the emotions, passions, sympathies and prejudices of the jurors. Our Supreme Court has held that “[a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors.” State v. Williams, 204 Conn. 523, 545, 529 A.2d 653 (1987). While the example used by the prosecutor was inappropriate, we note that it was neither related to the facts of this case, nor designed to create sympathy for anyone directly involved in the case. Because there is no evidence that it “so infected the trial with unfairness as to make the resulting conviction a denial of due process”; (internal quotation marks omitted) id., 539; we are not persuaded that the remark deprived the defendant of his right to due process.

D

The defendant next claims that the prosecutor improperly argued, in violation of an earlier court ruling, that a witness was afraid of the defendant when she testified. Following the prosecutor’s closing argument, the defendant challenged the remark in his motion for a mistrial, arguing that the prosecutor’s statement was improper because it was in violation of a ruling made by the court earlier in the trial. The court denied the defendant’s motion for a new trial and his request for a curative instruction.

In our review of the remark, we recognize first that a prosecutor may not make an argument in violation of a court ruling. See State v. Ubaldi, 190 Conn. 559, 567-68, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). “As previously discussed, in considering claims of prosecutorial misconduct, we apply a due process analysis and consider whether the defendant was deprived of a fair trial. . . . A different standard is applied, however, when the claim involves deliberate prosecutorial misconduct during trial which violates express trial court rulings . . . .” (Citation omitted; internal quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 384, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). When such an allegation has been made, we must determine whether the challenged argument was “unduly offensive to the maintenance of a sound judicial process.” (Internal quotation marks omitted.) Id. If we answer that question in the affirmative, we may invoke our supervisory powers to reverse the defendant’s conviction. Id. “In determining whether the use of our supervisory powers to reverse a conviction is appropriate, we consider whether the effect of the challenged remark was to undermine the authority of the trial court’s ruling . . . . We also consider the degree of prejudice suffered by the defendant as a result of the remark. . . .

“Our Supreme Court . . . has urged a cautionary approach in this regard, noting that [Reversal of a conviction under our supervisory powers . . . should not be undertaken without balancing all of the interests involved: the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct.” (Citations omitted; internal quotation marks omitted.) Id., 384-85.

In light of the foregoing rules and guidance, we do not agree that the prosecutor’s comment, although inappropriate, was so unduly offensive to the maintenance of a sound judicial process that a reversal of the defendant’s conviction is appropriate. See id., 386. Recognizing “the trial judge’s superior opportunity to assess the proceedings over which he . . . has personally presided”; (internal quotation marks omitted) State v. Whipper, supra, 258 Conn. 257; we are persuaded by the fact that the trial court itself, in finding no basis for a mistrial, apparently did not believe that the challenged argument undermined its own earlier ruling. Furthermore, given the amount and quality of the evidence presented against the defendant, we are not persuaded that the comment was so prejudicial as to cause the jury to change its verdict from innocent to guilty. We conclude that the sanction of reversal is inappropriate. Id., 258-59.

E

The final remark challenged by the defendant was made by the prosecutor during his rebuttal closing argument, when he told the jurors that they were responsible for justice in our society. Following the prosecutor’s closing argument, the defendant challenged the remark in his motion for a mistrial, arguing that the prosecutor’s statement was improper because “[t]he jury’s task is to find facts in this case and report a verdict. They should not have the weight of the entire criminal justice system on . . . their shoulders.” The court denied the defendant’s motion and request for a curative instruction.

Absent any case law to persuade us otherwise, we find unavailing the defendant’s claim that the remark, in fact, placed “the weight of the entire criminal justice system” on the jurors’ shoulders and prevented them from carrying out their task rationally and impartially. We are not persuaded that it constituted prosecutorial misconduct.

We conclude that the court did not abuse its discretion in denying the defendant’s motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (9) murder of a person under sixteen years of age.” At the time of his death on December 31, 1995, the victim, Clinton Bennett, was fifteen years old.

       The holes in the coat that Novitch made when she cut the stains out for testing were plainly visible to Messina.

       Novitch testified that some of the stains on the defendant’s coat were too small to test. Scherczinger analyzed only the two bloodstains that Novitch identified, not the entire coat.

       Our reading of the record reveals that at trial, the only portion of Messina’s testimony to which defense counsel objected was that referencing a presumptive screening test. The issue as framed for this court, however, appears to address Messina’s conclusions in their entirety.

       The state had conducted only a presumptive test because the stain was too small for the actual test for blood. State v. Moody, supra, 214 Conn. 628.

       Having found that the trial court abused its discretion, the Supreme Court then noted that “[t]he defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Moody, supra, 214 Conn. 629. The court concluded that it was more probable than not that the admitted testimony misled the jury and affected the result of the defendant’s trial. Id. The court cited a note that the jury had sent to the trial court during its deliberations requesting that the testimony be reread regarding what shoe the blood was found on. Id. The court stated that the note indicated clearly that the jury found the testimony important and that the testimony undeniably misled the jury. Accordingly, the court concluded that the trial court’s failure to grant the defendant’s motion was harmful. Id., 630. Because we conclude that the testimony in this case was relevant, we do not address the issue of harm.

       In contrast, no conclusively identified blood stains were present on the defendant’s shoe in Moody. See State v. Moody, supra, 214 Conn. 627-28.

       The parties are in disagreement as to the appropriate standard of review. The defendant urges us to review this claim on a de novo basis. The state argues that we should use an abuse of discretion standard.

       The prosecutor stated in relevant part: “Vanessa Bowden and Abbie Moore both saw [the defendant] beat the victim to death in that room. They both saw him take the money out of the victim’s pants after pulling his pants down. They both identified him here in court very positively. They both mentioned his name within the first conversations they had with the police long before the police had a suspect.

        “To counter all of this evidence of his guilt of this crime, you havenothing, no evidence and you have to ba,se your decision . . . .” (Emphasis added.)

       The prosecutor stated in relevant part: “A reasonable doubt has to be based upon evidence, and you don’t have any evidence that there was blood all over him. You have evidence that there were forty-seven drops because this is his coat and it’s medium velocity blood spatter, okay. Did he beat somebody else to death some other day? It’s a ridiculous claim. He has medium—none of you have medium velocity blood spatter on your coats or you could be one of the 12,000people in New Haven that. . . .’’(Emphasis added.)

       The prosecutor stated in relevant part: “And I challenge any one of you to tell me almost three years ago, pick a Thursday, and tell me what you did. Now, maybe if you are an ‘ER’ [television show] fan, you could say I watched ‘ER.’ But which episode? And then go to a day that isn’t ordinary.

        “For me, I would probably pick the time that I heard that my mother had died, and this isn’t for sympathy, it’s an example of a traumatic eosperience. And I can remember exactly what I was told about that, and I remember who called on the phone and I remember what I said to them and I can remember my wife’s reaction, but I can’t tell you what I had for breakfast, and I can’t tell you what I was doing fifteen minutes earlier, I can’t tell you whether I had breakfast that day. I can remember everything about the traumatic event itself, but I don’t remember anything about the ordinary events, and that is the places where [the defendant] claims there [are] inconsistencies because there are no inconsistencies in any of the testimony, and he did not dare have him repeat it because of the sincerity that you saw in these witnesses on [cross-examination], he never asked a question about what happened, about what we had to prove, never on [cross-examination].” (Emphasis added.)

       We again note that the jury’s acquittal of the defendant on three of the four charges against him conflicts, in our view, with the defendant’s claim that the jury’s emotions, passions and prejudices were so inflamed as to preclude a rationally based decision.

       Specifically, the defendant challenges the following comment made by the prosecutor during his rebuttal argument: “ You don’t have to have a great memory to know that somebody beat somebody to death with a bat.

        “And what you saw when [the witness] identified this defendant, I submit to you, was fear that caused her to shake and fear that caused her to cry. And you’re an observant, group and one of the things, there are twelve of you deliberating, because somebody saw all of this stuff and if it wasn’t the guy, she wouldn’t, home anything to be afraid of.

      “If the only reason she is saying it is to please [me], she wouldn’t have to be afraid of having to look at him and having him see her. But you see she is a bad witness when she says stuff that hurts, but she is a great witness when she says stuff that [the defendant] can claim.” (Emphasis added.)

       The court ruling occurred during the following portion of the state’s redirect examination of Abbie Moore:
      “[Assistant State’s Attorney]: Yesterday during your testimony, you cried?
      “[Moore]: Yes, I did.
      “[Assistant State’s Attorney]: Why?
      “[Moore]: Because—
      “[Defense Counsel]: Objection, relevance.
      “The Court: Sustain the objection.
      “[Assistant State’s Attorney]: When you were testifying here yesterday, what was your emotional state?
      “[Defense Counsel]: Objection, relevance, not brought—and also beyond the scope of [cross-examination].
      “[Assistant State’s Attorney]: Judge, I claim it. If the jury needs to be excused, I would like to—
      “The Court: Go to the jury room please.
      (Whereupon, the jury left the courtroom.)
      “The Court: Pose your question.
      “[Assistant State’s Attorney]: What was your emotional condition yesterday after you walked into the courtroom when you began to testify?
      “[Moore]: I was scared.
      “[Assistant State’s Attorney]: And why were you scared?
      “[Moore]: Because of the way he was looking at me, just scared and nervous, I just want to—
      “[Assistant State’s Attorney]: When you saw him looking at you in that way, had you seen that before?
      “[Moore]: Yes, I did.
      “[Assistant State’s Attorney]: When and where?
      “[Moore]: December 31st at Vanessa[’s] house.
      “[Assistant State’s Attorney]: I claim that’s relevant to two things: One, the jury has seen her emotional—the external emotional state, I think it’s appropriate for them to know why she was reacting the way she was; and, two, it’s that part of her identification and her ability to identify the defendant because of the way that he was looking at her, and it was the same way that he looked on that night.
      “[Defense Counsel]: I respectfully disagree. This land of questioning, all it does is incite the emotional aspects with the jurors and inflame the jurors, and it is not relevant and it is beyond the scope of what I asked on [cross-examination].
      “The Court: Well, wholly apart from beyond the scope, its probative value is slight compared to the prejudicial effect, and the court will not allow it.
      “[Assistant State’s Attorney]: Can I ask one more question, Your Honor?
      “The Court: Yes, sir.
      “[Assistant State’s Attorney]: You were able to—you identified the defendant yesterday as being the person who was in the apartment?
      “[Moore]: Yes.

        “[Assistant Stale’s Attorney]: What was it you recognized about him?
      “[Moore]: Oh, God. The way, sitting up staring. Please, I want to get this over with, okay. I’m nervous in here.
      “[Assistant State’s Attorney]: That would be my last question.
      “[Defense Counsel]: I object to that.
      “The Court: The objection is sustained for the same reason.”

       In his argument to the jury, the prosecutor stated: “Now, maybe when you heard that [the defendant] was arrested you thought, well, the police are responsible for doing justice; and it could be when Judge Fracasse managed the proceedings here and maintained the order of the courtroom and read to you the information you thought that the judge was responsible for doing justice; or maybe when you saw that I had signed the information when it was read to you, you thought that maybe prosecutors are responsible for justice, but, you know, you are responsible for justice in our society. And justice means that you have to do what the evidence requires, that you can’t speculate, that you can’t take that red herring and follow it down the path when it doesn’t have anything to do with what happened—to what has to be proven.” (Emphasis added.)

       We note again the jury’s acquittal of the defendant on three of the four charges against him.


text:
    STATE OF CONNECTICUT v. RODERICK DUDLEY
    (AC 19701)
    Fo1i, Mihalakos and Dranginis, Js.

      Argued October 29, 2001
    officially released February 26, 2002

      G. Douglas Nash, public defender, with whom were Jason C. Welch, certified legal intern, and, on the brief, Pamela S. Nagy, former assistant public defender, and Rebekah L. Sprano, certified legal intern, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Robin Cutuli, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Roderick Dudley, appeals from the trial court’s judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). On appeal, the defendant claims that (1) he was deprived of a fair trial by prosecutorial misconduct during the trial and during closing argument, (2) the court improperly admitted testimony on collateral matters and in violation of the defendant’s sixth amendment right to counsel, (3) he was deprived of a fair trial by the court’s interference and (4) the court improperly considered defense counsel’s misconduct during the defendant’s sentencing. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim and the defendant became acquainted after meeting each other in their neighborhood. Thereafter, the defendant sporadically visited the victim at her apartment. They would play video games and, on one occasion, smoke crack cocaine together.

On one evening at the victim’s apartment, the two consumed alcohol together. The victim became tired and informed the defendant that she wanted him to leave so that she could go to sleep. He refused and demanded sexual favors. He forced her onto her bed and pinned her down. The victim, in an attempt to forestall the attack, told the defendant that she needed to take her seizure medication. The defendant temporarily let her get up from the bed, but followed her and ordered her to return to the bed. He again pinned her down and, wearing a condom, forced her to have vaginal intercourse. The victim repeatedly said “no,” struggled with the defendant and covered her mouth with her hand to keep him from kissing her. After completing the sex act, the defendant threw the condom in the toilet bowl. He then dressed and left the apartment.

The victim ran out of the apartment to a nearby friend’s apartment. She confided in a friend, Nina, who lived nearby, that the defendant had raped her, and the two called the police. Responding police saw the defendant on the street, whereupon the victim identified him. She then submitted to a medical examination and gave the police a signed statement.

Upon questioning by the police, the defendant initially denied ever having had sexual intercourse with the victim. At trial, however, the defendant testified that he and the victim had smoked crack cocaine and drank alcohol all day, and that they engaged in consensual sex. He claimed that the victim concocted the rape story when she became angry that he took her money and left to buy more cocaine, but did not return.

The jury returned a guilty verdict, and the court sentenced the defendant to fifteen years in the custody of the commissioner of correction. This appeal followed. Additional facts will be set forth as necessary to resolve the issues on appeal.

I

The defendant first claims that he was denied a fair trial because of a pattern of prosecutorial misconduct. Specifically, the defendant claims that the prosecutor improperly (1) questioned the defendant on cross-examination, (2) commented on the defendant’s exercise of his constitutional rights, (3) vouched for the credibility of a witness, (4) appealed to the jury’s emotions and (5) referred to facts not in evidence. We are not persuaded.

“Prosecutorial misconduct may occur in the course of cross-examination of witnesses . . . and may be so clearly inflammatory as to be incapable of correction by action of the court. ... In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury’s verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal.” (Internal quotation marks omitted.) State v. Daniels, 42 Conn. App. 445, 456, 681 A.2d 337, cert. denied, 239 Conn. 928, 683 A.2d 397 (1996).

“Prosecutorial misconduct can [also] occur in the course of closing argument. . . . Our standard of review of a claim of prosecutorial misconduct that allegedly results in an unfair trial is well established. [T]o deprive a defendant of his constitutional right to a fair trial . . . 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. . . . Moreover, [w]e will not afford [relief under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), to unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . .

“In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial. ... In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. . . . The defendant bears the burden of proving that the prosecutor’s statements were improper in that they were prejudicial and deprived him of a fair trial. . . . In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 266-67, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). With that standard of review in mind, we now turn to each of the defendant’s specific claims of misconduct.

A

Cross-Examination

The defendant’s first claims involve the cross-examination of the defendant. The following additional facts are necessary for our resolution of those claims. During the investigation, the police found a discarded condom in the victim’s toilet bowl. Scientific evidence established that it contained the defendant’s semen. The defendant, however, initially denied having had sex with the victim on the night of the rape, but admitted having had sex with her two weeks prior. The defendant later changed his story and admitted that they had had sex on the night of the alleged rape, but claimed that it was consensual. The state’s theory, therefore, became that the defendant had changed his story upon learning that police found the condom containing his semen.

On cross-examination of the defendant, the state asked whether he changed his story to consensual sex because he found out that police had discovered the condom. The defendant sought a mistrial, arguing that the state had pointed out what his defenses were and how they changed, and, in the alternative, he requested that a curative instruction be given to the jury that he need not prove his innocence. The court denied the defendant’s motion for a mistrial and agreed that such an instruction would be given. The defendant urged that the court give a curative instruction indicating that the prosecutor should not have inquired about the defendant changing his defense. The court responded only that it might make some reference to it.

The defendant argues on appeal that the state’s questioning was an improper attempt to persuade the jury that the defendant was not credible because of changes in his defense strategies, thereby introducing information that was not properly admitted into evidence. We are not persuaded.

“It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court or in other proceedings which contradict those made upon direct examination. . . . This is based on the notion that talking one way on the stand, and another way previously, raises a doubt as to the truthfulness of both statements.” (Internal quotation marks omitted.) State v. Valentine, 240 Conn. 395, 411, 692 A.2d 727 (1997). The record makes it clear that the prosecutor’s questioning, although inartfully phrased, merely was an attempt to impeach the defendant’s credibility by pointing out his prior inconsistent statements.

The defendant further contends that the state’s questions raised the inference that he was obliged to prove his innocence. We do not agree. “Unless there is a clear indication to the contrary, a jury is presumed to follow the court’s instructions.” (Internal quotation marks omitted.) State v. Coughlin, 61 Conn. App. 90, 96, 762 A.2d 1 (2000), cert. denied, 255 Conn. 934, 767 A.2d 105 (2001). We conclude that the court’s instruction on that point cured any harm that may have resulted.

Finally, the defendant argues that the questioning constituted an improper comment on his exercise of his constitutional right to confrontation because it suggested that he changed his testimony after hearing testimony in the case. We disagree.

In State v. Alexander, 254 Conn. 290, 755 A.2d 868 (2000), our Supreme Court held that aprosecutor’s comments regarding a defendant’s ability to tailor his testimony to the testimony of other witnesses does not implicate his right to a fair trial or his right to confrontation. The Supreme Court stated that “by exercising his fifth amendment right to testify on his own behalf, it is axiomatic that a defendant opens the door to comment on his veracity. It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination. ... A defendant cannot both take the stand and be immune from impeachment. ... An accused who testifies subjects himself to the same rules and tests which could by law be applied to other witnesses.” (Citations omitted; internal quotation marks omitted.) Id., 297-98. The Supreme Court reasoned that “[i]t is . . . [quite impossible] for the jury to evaluate the credibility of the defendant’s testimony while blotting out from its mind the fact that before giving the testimony the defendant had been sitting there listening to the other witnesses.” (Internal quotation marks omitted.) Id., 299. As in Alexander, in this case the comments did not invite the jury to draw an inference of guilt based solely on the exercise of the defendant’s constitutional right to be present at trial and to confront the witness. It was proper for the prosecutor to request that the jury generally consider the defendant’s unique opportunity when judging his credibility. See id.

B

Closing Argument

The defendant next points to several portions of the prosecutor’s closing argument as improper. The defendant did not object to the statements or request a curative instruction. He therefore seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40.

1

Right to be Present at Trial

The defendant first claims that the prosecutor improperly invited the jury to draw an adverse inference from the defendant’s ability to tailor his testimony because of his presence during the trial, and thereby implicated the exercise of his rights to confrontation and to be present at trial. We do not agree.

We conclude that our Supreme Court’s decision in State v. Alexander, supra, 254 Conn. 290, is controlling. As we discussed in part I A, the jury was not invited to draw an adverse inference on the basis of the defendant’s presence. Rather, the prosecutor asked the jury to evaluate the defendant’s credibility in light of his presence at trial. We therefore conclude that the defendant has failed to establish that the alleged violation clearly exists and decline to review his claim.

2

Credibility of the Witnesses

Next, the defendant claims that the prosecutor improperly vouched for the credibility of the witnesses. We are unpersuaded.

“We acknowledge that it is improper for a prosecutor to express his or her opinion, directly or indirectly, as to a defendant’s guilt. State v. Singh, 59 Conn. App. 638, 647, 757 A.2d 1175 (2000), cert. granted on other grounds, 255 Conn. 935, 767 A.2d 1214 (2001). We also recognize, however, that advocates must be allowed latitude in argument to accommodate for the zeal of counsel in the heat of argument. Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 399-400, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999). The mere use of phrases such as T submit,’ T find,’ or ‘I believe’ does not constitute improper argument. Id., 400.” (Internal quotation marks omitted.) State v. Moore, 65 Conn. App. 717, 724, 783 A.2d 1100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001). A prosecutor properly may comment on credibility of witness where such comment reflects reasonable inferences from evidence adduced at trial; State v. Burton, 258 Conn. 153, 170, 778 A.2d 955 (2001) (proper to suggest fact that witnesses had not rehearsed stories together enhanced their credibility); and may argue that witnesses had no apparent motive to lie. See State v. Hicks, 56 Conn. App. 384, 394, 743 A.2d 640 (2000). We conclude that the defendant failed to show that a constitutional violation clearly exists. Any impropriety in the prosecutor’s comments was assuaged by the court’s instructions to the jury to determine for itself the credibility of the witnesses and not to consider as facts any arguments or statements made by the attorneys. See State v. Moore, supra, 725.

3

Appeal to Emotions

The defendant claims that the prosecutor improperly appealed to the jury’s emotions. Specifically, he argues that the prosecutor improperly “detailed the hospital and judicial procedures” that the victim was subjected to when she accused the defendant of rape.

“An appeal to emotions, passions, or prejudices improperly diverts the jury’s attention away from the facts and makes it more difficult for it to decide the case on the evidence in the record.” State v. Alexander, supra, 254 Conn. 307. Assuming without deciding that the prosecutor’s statements were improper argument, we are not persuaded that the statement “so infected the trial with unfairness as to make the conviction a denial of due process.” Id., 303.

The defendant further argues that the state’s rebuttal argument wherein the prosecutor argued, “I can’t believe I heard this. Was he blaming the victim for the situation she put herself into? Oh, my God. She was there with a guy whose name she did not know. They were playing cards and Atari in her apartment, and she put herself into this situation? She should have been sexually assaulted because she was with a guy she did not know his last name in the apartment? They have had several contacts in the past. [He has] been to her apartment before. I can’t believe that defense counsel would claim that she put herself into this situation, that you should consider that in any way.” The state contends that this rebuttal argument was made fairly in response to defense counsel’s closing argument, which attempted to place blame on the victim.

We agree with the state that defense counsel invited the state’s response. See State v. Jefferson, supra, 67 Conn. App. 267. Viewed in the context of the entire trial, we cannot conclude that the defendant was clearly deprived of a fair trial by the prosecutor’s statement.

4

Facts Not in Evidence

The defendant argues that the prosecutor introduced facts that were not in evidence because the hospital did not perform tests to confirm alcohol consumption. Specifically, he claims that the prosecutor improperly referred to medical records that were in evidence and stated, “We didn’t touch upon this too much during the case, but you are free to go through them and gather from them anything that you wish. I’d like to point out to you that [the victim’s] version to the hospital staff is consistent with what—her version of what happened here is consistent with the version she relayed to us here on the stand. . . . Now, the defendant portrays the victim as high on crack, yet the hospital records, the police observations and Nina’s observations indicate no signs of intoxication.” We are not persuaded.

Our review of the record reveals that the hospital report was admitted into evidence and did not contain any indication that the victim was under the influence of drugs or alcohol at the time of her physical examination. A prosecutor is entitled to comment on reasonable inferences to be drawn from the evidence. A jury reasonably could conclude that if the victim displayed any symptoms of intoxication, they would have been included in the medical report. Moreover, in this case, both the prosecutor and defense counsel made clear in their closing arguments that the hospital did not conduct toxicology tests, and the court instructed the jury that arguments made by counsel are not evidence. We therefore conclude that the defendant has failed to show that a constitutional violation clearly exists.

II

The defendant next claims that the court improperly admitted the testimony of inspector Stephen Looby on collateral matters and in violation of the defendant’s sixth amendment right to counsel. We disagree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . Evidence is considered relevant when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . . Furthermore, relevant evidence has a logical tendency to aid the trier in the determination of an issue. ... A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case.” (Citations omitted; internal quotation marks omitted.) State v. Wright, 62 Conn. App. 743, 757-58, 774 A.2d 1015, cert. denied, 256 Conn. 919, 774 A.2d 142 (2001).

“The extent to which rebuttal testimony may be carried is within the discretion of the trial court. ... As a general rule, extrinsic evidence of a prior inconsistent statement may not be admitted to impeach the testimony of a witness on a collateral matter. . . . Thus, on cross-examination, a witness’ answer regarding a collateral matter is conclusive and cannot be contradicted later by extrinsic evidence. . . . Extrinsic evidence of a prior inconsistent statement may be admitted, however, to impeach a witness’ testimony on a noncollateral matter. ... A matter is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict the witness. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party.” (Citations omitted; internal quotation marks omitted.) State v. Moran, 53 Conn. App. 406, 413-14, 731 A.2d 758, cert. denied, 249 Conn. 925, 733 A.2d 849 (1999). “Evidence tending to show the motive, bias or interest of an important witness is never collateral or irrelevant. ... It may be . . . the very key to an intelligent appraisal of the testimony of the [witness].” (Internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 248, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).

The state questioned Looby regarding statements that the defendant made to him when the defendant appeared to have a blood sample drawn for DNA testing. When it appeared to Looby, on the day that the procedure was scheduled to take place, that the defendant’s counsel was delayed, he asked the defendant if he wanted to proceed with the procedure without his attorney present. The defendant requested to reschedule, and the procedure took place on another date with the defendant’s attorney present. At trial, the state asked the defendant if he had told Looby that he wanted to speak to his attorney “because [he was] afraid the condom found might have been from two weeks prior.” The defendant responded in the negative. He further denied on direct examination that he changed his version of events after discovering that a condom had been found by police in the toilet at the victim’s apartment. The state then elicited testimony from Looby that the defendant responded that he wanted to speak to his attorney because “the condom might have been one that was left there by him from two weeks prior when he had consensual sex.” The state contends that the question went to the defendant’s credibility. We agree.

The central question before the jury was the relative credibility of the victim and the defendant. The defendant made a statement to police, which the court admitted into evidence, stating that he did not have sex with the victim on the night of the rape. He then testified that he did have sex with her, but on an occasion two weeks prior to the alleged rape. Testimony further established that a discarded condom containing the defendant’s semen was in fact found in the victim’s toilet on the night of the rape. While Looby’s testimony went to the issue of the defendant’s credibility, it also went to a material issue in the case, whether the defendant and the victim had consensual sex. We therefore conclude that the court did not abuse its discretion in finding that Looby’s testimony did not concern a collateral matter.

We are also not persuaded that Looby’s testimony was admitted in violation of the defendant’s sixth amendment right to counsel. As with many of his claims, the defendant failed to preserve it for appeal and, therefore, seeks Golding review.

“[T]he Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a ‘medium’ between him and the State. . . . [T]his guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking this right. The determination whether particular action by state agents violates the accused’s right to the assistance of counsel must be made in light of this obligation. Thus, the Sixth Amendment is not violated whenever— by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached. . . . However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent.” State v. Piorkowski, 243 Conn. 205, 224-25, 700 A.2d 1146 (1997), citing Maine v. Moulton, 474 U.S. 159, 176, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985).

We cannot conclude that the court infringed on the defendant’s sixth amendment right to counsel by its admission of Looby’s statement. The defendant bears the burden of showing that his statement to Looby was made in the context of a custodial interrogation. See, e.g., State v. Vitale, 197 Conn. 396, 409, 497 A.2d 956 (1985). “Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way .... Before one suspected of the commission of a crime is entitled to . . . [Miranda warnings], two conditions are required: the suspect must be in the custody of law enforcement officials . . . and the suspect must be subjected to interrogation.” (Citations omitted.) Id., 411. “Every question posed to a defendant in custody is not equivalent to an interrogation.” State v. Dixon, 25 Conn. App. 3, 8, 592 A.2d 406 (1991).

The question posed to the defendant by Looby was simply whether the defendant wanted to proceed with the blood drawing or wait for his attorney—an entirely ministerial question. That is not the kind of question that constitutes an interrogation. Rather, it is “characterized by brevity, neutrality and an absence of intent to elicit a confession or admission.” Id., 9. We therefore conclude that the defendant has not met his burden of showing that a constitutional violation clearly exists and that he was deprived of a fair trial.

Finally, the defendant claims that the state’s questioning of Looby put before the jury the defendant’s exercise of his right to counsel and right to remain silent and, therefore, violated his due process rights. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Daugaard, 231 Conn. 195, 210-11, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). The defendant has not satisfied the third prong of Golding necessary for our review of his claim.

“Ordinarily, evidence of a defendant’s postarrest and post-Miranda silence is constitutionally impermissible under the due process clause of the fourteenth amendment. Doyle v. Ohio, [supra, 426 U.S. 610]. A Doyle violation also encompasses a prosecutor’s comment upon a defendant’s statement requesting an attorney. . . . With respect to post-Miranda warning . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.” (Citation omitted; internal quotation marks omitted.) State v. Berube, 256 Conn. 742, 750-51, 775 A.2d 966 (2001).

We conclude that Looby’s testimony that the defendant did not want his blood drawn until his attorney could be present does not constitute improper evidence of silence. The testimony was not elicited for the purpose of commenting on the defendant’s exercise of his right to remain silent or his right to counsel. Rather, it was necessary to show “the investigative effort made by the police and the sequence of events as they unfolded . . . .” (Internal quotation marks omitted.) State v. Rose, 41 Conn. App. 701, 712, 679 A.2d 19, cert. denied, 239 Conn. 906, 682 A.2d 1011 (1996).

Ill

The defendant’s next claim is that the court deprived him of a fair trial because the court did not appear impartial. Specifically, he argues that the court assumed a position of advocacy when it intervened during defense counsel’s cross-examination of the victim and suggested that it would sustain an objection by the prosecution if one were made on relevancy grounds. Because the defendant did not preserve this claim at trial, we must determine whether he can prevail under State v. Golding, supra, 213 Conn. 239-40.

“The principles guiding a trial 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. . . . Consistent with his neutral role, the trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so.” (Internal quotation marks omitted.) State v. Solek, 66 Conn. App. 72, 89-90, 783 A.2d 1123, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). “Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 770, 760 A.2d 82 (2000).

“This court has said that [jjudges 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.” (Internal quotation marks omitted.) State v. Pharr, 44 Conn. App. 561, 570-71, 691 A.2d 1081 (1997). “Any claim that the trial judge crossed the line between impartiality and advocacy is subject to harmless error analysis.” State v. Burke, 51 Conn. App. 328, 335, 723 A.2d 327 (1998), cert. denied, 248 Conn. 901, 732 A.2d 177 (1999).

The defendant has not demonstrated that his claim implicates his due process right to a fair trial and, as a result, fails to satisfy the second prong of Golding. The court properly interjected to ask defense counsel to justify his inquiry into the victim’s employment and financial status. Just as a judge is not required to remain silent when a “ ‘case is not being presented intelligibly to the jury’ State v. Robertson, supra, 254 Conn. 770; here, the judge was not required to remain silent where irrelevant, prejudicial evidence was elicited. We therefore decline to review the defendant’s claim.

IV

The defendant finally claims that the court considered improper factors when sentencing him and thereby deprived him of due process. Specifically, he claims that the court improperly considered defense counsel’s behavior during the trial, having concluded that defense counsel’s cross-examination of the victim was tantamount to an assault. The defendant, having failed to preserve his claim, seeks, alternatively, Golding or plain error review. We decline to review his claim under Golding and the plain error doctrine.

“As a general matter, a trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters. On appeal, we will disturb atrial court’s sentencing decision only if that discretion clearly has been abused.” State v. Kelly, 256 Conn. 23, 80-81, 770 A.2d 908 (2001). “Due process requires, however, that information be considered only if it has some minimal indicium of reliability. ... A court should refrain from comments that find no basis in the record. Nonetheless, the mere reference to information outside of the record does not require a sentence to be set aside unless the defendant shows: (1) that the information was materially false or unreliable; and (2) that the trial court substantially relied on the information in determining the sentence.” (Internal quotation marks omitted.) State v. Connelly, 46 Conn. App. 486, 505, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

In this case, the court sentenced the defendant to fifteen years imprisonment, suspended after ten years, with five years probation with conditions. The court imposed a sentence within the requirements of § 53a-70 (a) (1). The record reveals that the court considered the evidence and concluded that “[t]he evidence was overwhelming that the defendant was guilty of sexual assault beyond a reasonable doubt. . . .” The court further stated that “[n]ext to murder, rape is society’s most heinous crime. It is a denigration of womanhood. It leaves permanent scars and damages. Sexual assault is a pestilence of virulent proportions. Assaulters, predators in this community, must understand that justice for sexual assault requires substantial sanctions.” We therefore cannot conclude that the defendant’s claim warrants either Golding or plain error review.

The judgment is affirmed.

In this opinion the other judges concurred.

       On appeal, the defendant takes issue with the following questions asked over objections: “And isn’t it true that you had to change your defense to consent because you found out we found the condom in the toilet?” and, “It’s not true that you first said no sex; then you said sex two weeks ago; then you said consensual sex because first you said no; then you found out that there was a condom; then you found out the condom was in the toilet so none of those defenses worked for you so you had to change it for today?” The defendant denied both questions.

       The court instructed in relevant part: “There were some references in the cross-examination of the defendant to his defenses in this case. You will always remember that this defendant does not have to prove his innocence or noninvolvement, that the burden of proving the defendant’s guilty beyond a reasonable doubt always remains with the state and never shifts to the defendant.”

       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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
      “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . . This court may dispose of the claim on any one of the conditions that the defendant does not meet.” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 653, 783 A.2d 511 (2001).

       The prosecutor in her closing argument stated in relevant part: “He left the victim’s house, according to his testimony, at 12:40. He arrives at his friend’s house at 1 o’clock. He stayed and he bought the three dime bags. That was thirty dollars. He gave twenty dollars to a friend he owed, which coincidentally is the fifty dollars he claims to have been given by the victim, and he knows that the police didn’t find any cash on him. . . .
      “I submit to you that the testimony by the defendant of the friend’s house that filled in the time gap between 12:40 and 3 a.m. is not credible. Of course, don’t forget to consider what interest the defendant has in the outcome of this case. Clearly, he has a motive to lie or to hide the truth. His motive to lie would be the fact that he faces here a criminal conviction. . . .
      “Now, the other statement, which is denied by the defendant, but if you believe inspector [Stephen] Looby that was that no blood was drawn on July 16,1998, because the defendant thought the condom was from consensual sex with the victim from an incident from a date two weeks prior to the incident in question. I think it’s reasonable for you to infer from that fact that at this point the defendant had knowledge that a condom was found.
      “Now, the evidence undisputedly shows the condom was in the toilet. It’s reasonable to think a condom wouldn’t be in a properly working toilet where people were living for two weeks. So, now the sex claim doesn’t work. Here, at trial, the defendant testifies that he had sex with the victim and it was consensual.”

       The state argued to the jury in relevant part: “What would be the victim’s motivation to lie? . . . That would mean that this victim made a complaint, went to the hospital, subjected herself to a sex kit that took . . . hours, had to have her hair pulled, her pubic hair pulled. Swabs were taken. She had to come to the state’s attorney’s office. She had to testify on the [witness] stand. She had to subject herself to cross-examination. She had to subject herself to having her prior drug use disclosed, and she also had to have gotten her friend, Nina, to go along with this whole charade and come here and testify falsely also or she would have had to have been a really good actress because if you believe Nina, Nina said she was hysterical.”

       Defense counsel argued in relevant part: “What was she thinking at 7 to 7:30, a man she didn’t know his last name who she met on the street a number of months prior who had been up to her apartment? She didn’t know his last name? If you believe the defendant, he had sex with her on prior occasions. It’s verified practically by inspector [Stephen] Looby’s comments. What is she doing with a man she doesn’t know his last name, she’s drinking with him? If you believe my client’s testimony, they are smoking pot. She is smoking crack from 7 until after midnight. . . . Seven to 7:30, how did she get herself into this position with a man she didn’t know his last name, to drink and smoke? Bad judgment.”

       We note the proper means of challenging the admissibility of the evidence is by a motion to suppress. See Practice Book § 41-12.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       See footnote 3.

       See Practice Book § 60-5. “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . Moreover, because the claim raised here is nonconstitutional, the defendant must demonstrate that the trial court’s improper action likely affected the result of his trial.” (Citation omitted; internal quotation marks omitted.) State v. Solman, 67 Conn. App. 235, 239-40, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002).