text:
    STATE OF CONNECTICUT v. ANGEL ROBLES
    (AC 27010)
    DiPentima, McLachlan and McDonald, Js.

      Argued March 13
    officially released August 28, 2007

      Joseph A. Jaumann, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Howard S. Stein, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Angel Robles, appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2). On appeal, the defendant claims that (1) the state engaged in a pattern of prosecu-torial impropriety, which denied the defendant the right to a fair trial or constituted plain error, (2) the court improperly permitted the state to introduce evidence of the defendant’s prior misconduct and (3) the court improperly permitted the state to present testimony from an expert, who had interviewed the victim, regarding general characteristics of child sexual abuse. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim had known the defendant since she was approximately five to seven years old. When she first came into contact with the defendant, the victim and her immediate family lived in Poughkeepsie, New York, where the defendant, who was the boyfriend of the victim’s aunt, also lived. At that time, the defendant would occasionally watch the victim and her siblings while the victim’s mother and her aunt went out. The victim testified that on many of these occasions, while the victim and the defendant were in her mother’s room, the defendant initiated sexual contact with her by rubbing her chest and vagina underneath her clothing and attempted unsuccessfully to engage in sexual intercourse with her. The victim’s mother testified that the defendant was in his early twenties at the time.

When the victim was approximately eight years old, she and her family moved to an apartment in Bridgeport. Shortly after the victim moved to Bridgeport, the victim’s aunt and the defendant moved there as well, taking up residence in an apartment upstairs from the victim and her family. The victim testified that, during the period when she was between the ages of eight to approximately eleven or twelve years old, the defendant continued to engage in the same type of sexual contact with her. She testified specifically to an incident that occurred in her aunt’s upstairs apartment when the defendant began groping and touching her chest area, removed her shorts and attempted to have sexual intercourse with her. She testified that she was successful in warding off his attempts at that time.

Both the victim and the defendant changed residences on at least two subsequent occasions; however, they stayed in Bridgeport and always remained in relative proximity to each other. When the victim was approximately twelve years old, she began to baby-sit for her younger cousin at the home of her aunt and the defendant. The victim testified that one night, when she was twelve years old, the defendant came into her cousin’s room where she was sleeping and had sexual intercourse with her. She testified that this occurred on other occasions, at times when she would sleep overnight at her aunt’s house. She gave a detailed account of another incident that occurred in her cousin’s room when the defendant attempted unsuccessfully to engage in anal intercourse with her. After this incident, the victim confronted the defendant and warned him that she would tell her mother what was occurring if it continued. According to the victim, the sexual assaults stopped after this confrontation.

The victim first reported the sexual assaults to her former boyfriend’s mother, J, years later, in 2001. J advised the victim not to tell her boyfriend, S, because J feared that her son would get hurt or do something irrational after hearing that the abuse had occurred. Eventually, the victim told S about the assaults approximately two years after she made the initial disclosure to J.

In July, 2003, the victim and S were in an argument on the street outside of the victim’s home, which eventually required police intervention. Many other people were present, including the victim’s mother, her aunt, the defendant and J. At some point during the argument, the victim’s aunt got involved. In response to a comment made to S by the victim’s aunt, S stated, “you shouldn’t be worried about me, you should be worried about [the defendant]. He molested her when she was little.”

After this argument, the victim admitted to her mother that she had been sexually assaulted by the defendant. The assaults eventually were reported to the authorities in July, 2003. Additional facts will be set forth as necessary.

I

The defendant’s first claims involve allegations of prosecutorial impropriety. The defendant concedes that his prosecutorial impropriety claims were not preserved at trial. In reviewing unpreserved claims of prosecutorial impropriety, we engage in a two step analytical process, making an initial determination as to whether prosecutorial impropriety occurred and, if so, examining whether it deprived the defendant of his due process right to a fair trial by applying the factors set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). See State v. Fauci, 282 Conn. 23, 32-33, 917 A.2d 978 (2007). “[W]e emphasize that counsel’s failure to object at trial, while not by itself fatal to a defendant’s claim, frequently will indicate on appellate review that the challenged comments do not rise to the magnitude of constitutional error .... Put differently . . . prosecutorial [impropriety] claims [are] not intended to provide an avenue for the tactical sandbagging of our trial courts, but rather, to address gross prosecutorial improprieties that . . . have deprived a criminal defendant of his right to a fair trial. ” (Emphasis in original; internal quotation marks omitted.) State v. Boyd, 89 Conn. App. 1, 27-28, 872 A.2d 477, cert. denied, 275 Conn. 921, 883 A.2d 1247 (2005).

A

The defendant first claims that throughout the trial, the prosecutor improperly alluded to unsupported allegations that the defendant fled the state after the accusations against him surfaced. Specifically, the defendant claims that the prosecutor posited questions to four witnesses, probing whether the defendant had gone to his mother’s house in Poughkeepsie, New York, after the allegations against him had been lodged, without any evidence that the defendant had left the jurisdiction. He argues that the state’s use of these unsupported allegations to imply flight and consciousness of guilt on his part amounted to prosecutorial impropriety that deprived him of a fair trial or, in the alternative, constituted plain error warranting reversal.

With respect to the defendant’s claim of prosecutorial impropriety, the state argues that the defendant’s claim pertains to consciousness of guilt testimony, and, therefore, the claim is evidentiary in nature, without constitutional ramifications. Because this evidentiary claim was not preserved at trial, the state argues that we should decline to review the issue. We agree.

At trial, after the state presented its case-in-chief, the defense called two witnesses, the defendant and his girlfriend, the victim’s aunt. It was during this testimony that the state first sought to question the witnesses about the defendant’s alleged flight to Poughkeepsie, an event that they denied had occurred. After the defense rested, the state called one rebuttal witness, the victim’s uncle, and questioned him about whether the defendant had gone to New York after the July, 2003 incident. Although the victim’s uncle denied that the defendant told him that he had gone to New York, he stated that he assumed that the defendant had gone to Poughkeep-sie and admitted that he may have told an investigator that during a telephone conversation, the defendant told him that he had gone to Poughkeepsie.

As an initial matter, we must resolve whether the actions of the prosecutor set forth in the defendant’s unpreserved claim constitute prosecutorial impropriety. With regard to whether the prosecutor’s attempts to put a consciousness of guilt issue improperly before the jury constitutes prosecutorial impropriety, “[i]t has . . . been stated numerous times that consciousness of guilt issues are not constitutional . . . .” (Internal quotation marks omitted.) State v. Rowe, 279 Conn. 139, 153, 900 A.2d 1276 (2006). As such, they do not necessarily rise to a colorable claim of prosecutorial impropriety. Id., 154.

In State v. Camera, 81 Conn. App. 175, 839 A.2d 613, cert. denied, 268 Conn. 910, 845 A.2d 412 (2004), the defendant argued that the prosecutor “improperly used both cross-examination and summation to shift the burden of proof to the defendant and to mislead the jury into believing that the defendant had a duty to assert his innocence, thereby violating his due process right to a fair trial. He arguefd] that the prosecutor, during cross-examination, alluded to a duty on the defendant’s part to initiate contact with the police and that failure to do so was evidence of culpability. The defendant contend[ed] that the prosecutor returned to that theme during summation, which the defendant maintain[ed] was sufficient in and of itself to have deprived him of a fair trial.” Id., 186-87. The defendant sought review under State v. Golding, 213 Conn. 233, 239-40, 567 A. 2d 823 (1989), because he had not objected to the prosecutor’s remarks as prosecutorial impropriety before the trial court. State v. Camera, supra, 187-88.

In Camera, we declined to review the defendant’s unpreserved claim that the prosecutor’s use of consciousness of guilt testimony constituted prosecutorial impropriety, concluding that “[t]he references made by the prosecutor to the defendant’s departure from the scene before the police arrived and subsequent unwillingness to contact the police pertained to consciousness of guilt. Accordingly, the defendant’s claim [that the defendant had a duty to contact the police and that the failure to do so was evidence of culpability] is actually premised on the propriety of the prosecutor’s questioning on the subject of consciousness of guilt, rather than on alleged prosecutorial [impropriety]. In the context of this case, therefore, the defendant’s claim must be considered evidentiary rather than constitutional in nature.” Id., 188-89.

Similarly, in State v. Rowe, supra, 279 Conn. 145, the state presented evidence that the defendant, who was charged with, inter alia, robbery in the first degree, ran from the police on a subsequent occasion during which he was observed discarding contraband. The defendant chose not to present evidence that he fled because of the contraband. At trial, the prosecutor repeatedly argued that the reason the defendant ran from the police was because the car he was using on the night in question was the same car he used during the robbery two weeks earlier. Id., 148-49. Although this court initially reversed the defendant’s conviction on the ground of prosecutorial impropriety, our Supreme Court reversed the decision, noting that the testimony at issue pertained to allegations of the defendant’s consciousness of guilt and that the defendant had failed to object to the testimony on that ground. Agreeing with our decision in Camera, the Supreme Court concluded that, having failed to object at trial, the defendant had no colorable claim of prosecutorial impropriety with regard to the prosecutor’s comments about consciousness of guilt and that the defendant’s claim was an unreviewable evidentiary claim. Id., 152.

Here, the defendant’s claim is premised only on the propriety of the prosecutor’s questioning of the witnesses on the subject of consciousness of guilt. The defendant has referred to nothing in the record to indicate that the state used the purported inference of flight in closing argument, and no consciousness of guilt instruction was requested. Essentially, the defendant argues that it was improper for the prosecutor to have questioned the witnesses about the defendant’s flight from the state because the trial witnesses denied that the event occurred, and, therefore, there was no evidence that it occurred.

Thus, we agree with the state’s characterization of the defendant’s claim as an unpreserved evidentiary claim. When the prosecutor sought to elicit testimony from the witnesses about the defendant’s flight to Poughkeepsie, the defendant did not object. Accordingly, we conclude that the defendant has no colorable claim of prosecutorial impropriety with regard to the prosecutor’s questions and that the defendant’s claim is an unreviewable evidentiary claim. See id.

Alternatively, the defendant argues that we should reverse his conviction under the plain error doctrine. “The plain error doctrine is ... a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . The plain error doctrine 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 party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 239-40, 881 A.2d 160 (2005). We conclude that the defendant has suffered no manifest injustice constituting plain error.

B

The defendant next claims that the prosecutor improperly asked the jury during closing argument to consider the testimony of the victim’s former boyfriend, S, to corroborate the victim’s testimony with regard to prior uncharged misconduct evidence, which he argues denied him a fair trial. The defendant claims that the uncharged misconduct evidence brought in through S, which was first elicited by defense counsel, should not have been permitted as constancy of accusation testimony. As such, the defendant claims that the state’s comments on the testimony as “corroboration of consistency” during closing argument constituted prosecutorial impropriety, which denied him a fair trial.

During trial, the state indicated that it intended to call S to testify regarding the circumstances surrounding his July, 2003 argument with the victim but also intended to question S as a constancy of accusation witness with respect to the disclosures that the victim had made to him previously that the defendant had abused her sexually. After a lengthy discourse with the court about the admissibility of the evidence under the constancy of accusation exception to the rule against hearsay, the state abandoned its request for permission to question S regarding the disclosure and agreed to limit the testimony to the July, 2003 incident, which it did on direct examination. On cross-examination, however, defense counsel inquired about the disclosure. On redirect, the state then elicited farther information about the details of the disclosure in which S testified that the victim had explained to him that the defendant had used Vaseline during the sexual assaults. The state referred to S’s redirect testimony in its closing argument. See footnote 9. The defendant did not object either to the testimony elicited by the state on redirect examination of S or to the prosecutor’s comments during closing argument.

In asserting his claim on appeal, the defendant concedes that by questioning S about the disclosure on cross-examination, defense counsel opened the door to this testimony. Moreover, the defendant does not object to the testimony itself; rather, his claim is grounded in the assertion that it was improper for the state to comment on the testimony during closing argument because the evidence was inadmissible as constancy testimony. We conclude that the defendant opened the door to the redirect questioning and that the prosecutor’s comments on the evidence in closing were not improper.

“[Defense Counsel]: Was there a point in your relationship with [the victim] that she told you something about her and [the defendant]?
“[The Witness]: About a year and a half—about a year and half when we started dating, after, she told me.
“[Defense Counsel]: And was this something that happened when she was a little kid in New York?
“[The Witness]: Well, from what I was told, it—it happened in New York, but she never went further. She never told me anything else.”

“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. . . . This rule ‘operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.’ ” (Citations omitted; emphasis added.) State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).

Thus, notwithstanding that such evidence may be otherwise inadmissible, if a party opens the door, the court may, in its discretion, permit a party on rebuttal to offer evidence on the same subject if it is responsive to the previously admitted evidence. The purpose is to prevent one party from making unfair use of certain evidence to that party’s advantage, thereby creating a misleading impression to the fact finder. See id. In allowing such evidence, the court must apply a balancing test to determine whether the introduction of the evidence would be unduly prejudicial. See, e.g., State v. Busque, 31 Conn. App. 120, 128 n.5, 623 A.2d 532 (1993) (“[b]ecause, as we have stated, [the witness’] testimony was more prejudicial than probative, even if its introduction were permitted under our rules of evidence, we decline to analyze this claim in terms of the doctrine of ‘opening the door’ ”), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994).

Here, the defendant successfully prevented the state on direct examination from introducing testimony from S about the victim’s disclosure that the defendant had sexually assaulted her. On cross-examination, the defendant then sought, however, to introduce selected portions of the excluded evidence for his own advantage. Specifically, the record reveals that the defendant sought to attack the victim’s credibility by highlighting the fact that she made vague disclosures to S about the sexual assaults and that her disclosures were limited to incidents that occurred outside of the time frame of the charged offenses, thereby creating a misleading impression. Moreover, in closing argument, defense counsel also sought to capitalize on the vagueness of the victim’s disclosures to S. Thus, the state’s followup redirect examination, which sought to elicit more details about the nature of the disclosures and to provide a motive as to why the victim may not have been forthcoming to S, was a proper way to place the statements in context and clear up the misleading impression put forth by the defense. Accordingly, we conclude that it was not improper for the state to place the statements in context and to comment on such statements in closing, and, therefore, the defendant has presented no col-orable claim of prosecutorial impropriety on this ground.

II

The defendant next claims that the court improperly permitted the state to introduce evidence of the defendant’s misconduct toward the victim that occurred prior to the time period set forth in the information and outside of the state. Specifically, the defendant claims that it was improper to admit the victim’s testimony that the defendant initiated sexual contact with her by rubbing her chest and vagina underneath her clothing and attempted unsuccessfully to engage in sexual intercourse with her while the defendant cared for her at her mother’s house in Poughkeepsie when she was between the ages of five and seven years old. The defendant argues that these allegations were vague, unsubstantiated and therefore overly prejudicial. We disagree.

“This court reviews evidentiary claims by an abuse of discretion standard.” State v. Lucas, 63 Conn. App. 263, 273, 775 A.2d 338, cert. denied, 256 Conn. 930, 776 A.2d 1148 (2001). “The rules governing the admissibility of evidence of a criminal defendant’s prior misconduct are well established. Although evidence of prior unconnected crimes is inadmissible to demonstrate the defendant’s bad character or to suggest that the defendant has a propensity for criminal behavior . . . such evidence may be admissible for other purposes, such as to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency. . . . That evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material .... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have been done.” (Internal quotation marks omitted.) State v. Sawyer, 279 Conn. 331, 343, 904 A.2d 101 (2006). Our Supreme Court has instructed that evidence of a defendant’s prior sexual misconduct in sexual assault cases is viewed more liberally than other types of prior misconduct. Id., 332 n.l.

Here, the court exercised sound discretion in admitting the evidence. Specifically, the court ordered a voir dire examination of the victim regarding her proposed testimony on the prior uncharged misconduct outside the presence of the jury and heard argument from counsel before rendering a decision on the admissibility of the evidence. The court also made a specific finding that the evidence was admissible on the issues of motive and intent and made a detailed finding that the evidence was highly probative and material, and that its probative value outweighed the prejudicial effect. Furthermore, the court instructed the jury on the limited use of the evidence in order to safeguard against misuse and to minimize the prejudicial impact.

With regard to the court’s finding that the testimony was admissible on the issue of motive, State v. James, 211 Conn. 555, 560 A.2d 426 (1989), is instructive. In James, our Supreme Court explained that “[e]vidence of prior sexual misconduct with the complainant in a sexual assault case has commonly been admitted to show a lustful inclination toward the victim.” Id., 578. “That the defendant had a particular sexual interest in [the victim] is certainly relevant to his motivation to commit the crime charged.” Id. Citing James, the trial court determined that the victim’s testimony that the defendant previously had committed sexual acts toward her was relevant and material on the issue of motive. We conclude that the court’s reliance on James and its determination that the evidence was admissible were not an abuse of discretion. See State v. Larkin, 38 Conn. App. 125, 132, 659 A.2d 1211 (“the victim’s testimony that the defendant had previously committed sexual acts toward her was relevant and material”), cert. denied, 235 Conn. 903, 665 A.2d 904 (1995).

With regard to the court’s balancing test, the defendant argues that the allegations were remote in time and that the victim’s accounts were vague and uncorroborated. “The remoteness in time of a prior incident is rarely, standing alone, determinative of the admissibility of such evidence; rather, it is one factor to be considered by the trial court in making its decision.” State v. Kulmac, 230 Conn. 43, 62, 644 A.2d 887 (1994) (despite seven year hiatus between prior misconduct and charged offense, court did not abuse discretion in concluding that misconduct evidence “was sufficiently recent to have probative value”).

With respect to the defendant’s claim that the accounts were vague, the record reflects that during the voir dire, the victim gave a specific account of the prior assaults, providing details that included the defendant’s use of Vaseline, the location where the incidents occurred and a description of exactly how the defendant touched her. Moreover, notwithstanding that the defendant was unsuccessful in his attempts to engage in sexual intercourse with the victim on the uncharged occasions, the way in which he touched her on the prior occasions was very similar to the charged events and therefore highly probative on the issue of the defendant’s intent, and the court noted that intent was at issue in this case. See State v. Raynor, 84 Conn. App. 749, 756, 854 A.2d 1133 (“[w]hen atrial court determines whether it will allow such evidence, it needs to examine the similarities between the prior conduct and the current crime” [internal quotation marks omitted]), cert. denied, 271 Conn. 935, 861 A.2d 511 (2004). Thus, the court did not abuse its discretion in determining that the probative value of the evidence outweighed its prejudicial effect. Under the totality of these circumstances, we therefore conclude that the court did not abuse its discretion by permitting the state to introduce the evidence of prior misconduct by the defendant. See State v. Kulmac, supra, 230 Conn. 63.

Ill

The defendant’s final claim on appeal is that the court improperly permitted a state’s expert witness to vouch for the credibility of the victim. The defendant argues that because the expert had acted previously as a forensic interviewer and counselor to the victim, she was biased, and it was improper for her to be called as an impartial and detached witness to testify about the general characteristics of child sex abuse victims. The defendant also argues that because the victim was an adult when she testified, the expert’s testimony regarding the general characteristics of child abuse victims was unnecessary.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citations omitted; internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 634, 881 A.2d 1005 (2005).

At trial, the state called an expert, Lisa Bush, who testified that she is a licensed school psychologist who had been in practice for nineteen years, working primarily with adolescents. In addition, Bush testified that she is a contract forensic interviewer at a rape crisis center and has conducted approximately eighty to ninety interviews with children who presented claims that they had been sexually abused. In these roles, Bush testified, she had the opportunity to become familiar with the general characteristics of sexually abused children.

After the court qualified Bush as an expert, the defendant objected to Bush’s testimony on the ground that, to the extent the victim was older than age eighteen at trial, Bush’s testimony regarding general characteristics of sexually abused children was irrelevant. The defendant also argued that Bush, who had conducted an interview with the victim in this case and prepared a report, would improperly vouch for the victim’s credibility. In response, the state argued that Bush would testify only as to the general characteristics of sexually abused children and that the state would offer no evidence to indicate that Bush had interviewed the victim. After hearing argument outside the presence of the jury, the court overruled the defendant’s objection and allowed Bush to testify as to general characteristics of sexually abused children, but allowed the defendant a continuing objection to the testimony.

Bush then testified that children are more likely to be abused by someone they know over a long period of time. She also opined that if a child is sexually abused by a person whom they know, that child is more likely to make a delayed and only partial disclosure of the abuse. On cross-examination, defense counsel asked Bush whether she had conducted a forensic interview with the victim. The state conducted no redirect examination.

The defendant also claims that the court improperly permitted the state to use Bush, who had interviewed the victim as an expert, to testify on the general characteristics of sexually abused children. Essentially, the defendant’s argument is that because Bush’s testimony about the way in which child sex abuse victims generally disclose the abuse closely mirrored the victim’s trial testimony regarding what occurred in this specific case, Bush was clearly vouching for the victim’s credibility. We disagree.

“[I]n cases that involve allegations of sexual abuse of children, [our Supreme Court has] held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. . . . Such evidence assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma of sexual abuse on a child. ... It is not permissible, however, for an expert to testify as to his opinion of whether a victim in a particular case is credible or whether a particular victim’s claims are truthful. . . . In this regard, we have found expert testimony stating that a victim’s behavior was generally consistent with that of a victim of sexual or physical abuse to be admissible, and have distinguished such statements from expert testimony providing an opinion as to whether a particular victim had in fact suffered sexual abuse.” (Citations omitted; emphasis added.) State v. Iban C., supra, 275 Conn. 635. “Thus, [our Supreme Court has] recognized the critical distinction between admissible expert testimony on general or typical behavior[al] patterns of minor victims and inadmissible testimony directly concerning the particular victim’s credibility.” (Internal quotation marks omitted.) State v. Grenier, 257 Conn. 797, 806, 778 A.2d 159 (2001).

Here, the defendant concedes that during direct examination, Bush made no specific reference to the victim, to having interviewed her or to any statements made to Bush by the victim, and never specifically indicated that she believed the victim’s testimony. Further, the defendant has referred to nothing in the record that would indicate that Bush provided an opinion as to whether the victim had in fact suffered sexual abuse. Compare State v. Iban C., supra, 275 Conn. 636 (concluding that court abused its discretion by admitting into evidence expert’s diagnosis of victim as sexually abused child); State v. Grenier, supra, 257 Conn. 812 (court abused its discretion by permitting two experts to testify that particular victim was credible). Moreover, the defendant has cited nothing in the record to support his claim that Bush made even indirect assertions to validate the truthfulness of the victim’s testimony. See State v. Iban C., supra, 635 (“even indirect assertions by an expert witness regarding the ultimate issue in a case can serve inappropriately to validate the truthfulness of a victim’s testimony”); State v. Grenier, supra, 806 (discussing expert’s testimony that her treatment of the victim was for “ ‘the trauma of the abuse that [she] experienced’ ” constituted indirect assertion that validated truthfulness of victim’s testimony).

Thus, the defendant’s argument rests on the assertion that the expert’s testimony regarding the general traits of a victim of sexual abuse was consistent with the victim’s behavior. We find nothing improper about the court’s decision to admit the testimony for this purpose. See State v. Freeney, 228 Conn. 582, 592-93, 637 A.2d 1088 (1994) (“The sole purpose of the experts’ testimony was to establish that the victim’s behavior was generally consistent with that of a victim of sexual or physical abuse. . . . [W]e conclude that the admission of the expert testimony was within the trial court’s discretion.” [Citations omitted.]). Further, the defendant has cited no authority to support the proposition that the expert’s testimony was improper because the expert had prior knowledge of the facts of the victim’s particular case and had interviewed the victim in a capacity as a forensic examiner. Because the expert made no reference to the victim or her statement during her direct testimony or indirectly vouched for the victim’s credibility during her testimony, we conclude that the admission of the expert testimony was within the trial court’s discretion. See id.

With respect to the defendant’s argument that Bush’s testimony was irrelevant because the victim was an adult at the time of trial, that argument is without merit. It is not disputed that the victim’s allegations involved assaults that occurred when she was between the ages of approximately seven and fourteen and that the disclosures to J in 2001, and S in 2003, occurred when the victim was a minor. Throughout the trial, defense counsel sought to capitalize on the victim’s delay in reporting the incident as a child and the vagueness of such disclosures. Thus, the testimony of the expert on potential causes of a delay in reporting and vagueness of disclosures made by child sex abuse victims pertained to knowledge not common to the average person and was helpful to the jury in considering the issues before it, namely, the defendant’s sexual abuse of the victim and her disclosures of the sexual abuse, all of which occurred when she was a child. As such, the court’s admission of the testimony was not an abuse of discretion. See State v. Iban C., supra, 275 Conn. 634.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant received a total effective sentence of twenty-five years imprisonment, execution suspended after fifteen years, with fifteen years probation.

       Subsequent to oral argument in (Ms court, our Supreme Court rendered its decision in State v. Fauci, 282 Conn. 23, 917 A.2d 978 (2007), in wMch it determined that the term “prosecutorial impropriety” is more appropriate than the traditional term “prosecutorial misconduct.” Id., 26 n.2. Although the parties briefed and argued the defendant’s claim under the more traditional nomenclature, we have adopted the term prosecutorial impropriety in our analysis of the defendant’s relevant claims.

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

       As reflected in the record, the state questioned only three witnesses, the victim’s aunt, her uncle and the defendant, specifically about whether the defendant had left the state and gone to Poughkeepsie after the July, 2003 incident. The fourth witness, the victim’s mother, was not questioned about whether the defendant had left the state and merely indicated that the defendant remained in Connecticut after the incident.

       The defendant does argue that during closing argument, the state improperly referred to the victim’s uncle as a defense witness. At trial, after the victim’s uncle denied that the defendant had told him that he had gone to Poughkeepsie, the state properly impeached the victim’s uncle on his bias toward the defendant and his prior inconsistent statement to the state’s investigator. See State v. Winot, 95 Conn. App. 332, 356, 897 A.2d 115 (“A party may impeach his own witness in the same manner as an opposing party’s witness .... This right includes impeachment by use of prior inconsistent statements.” [Citation omitted; internal quotation marks omitted.]), cert. granted on other grounds, 279 Conn. 905, 901 A.2d 1229 (2006). In this context, the state’s isolated remark in closing, which clearly sought to cast the victim’s uncle as sympathetic to the defendant on the basis of his trial testimony, was insufficient to deny the defendant a fair trial.

       To the extent that the defendant seeks to imply bad faith on the part of the prosecutor in putting forth the questions, such argument is unsupported. Without trial objection, the prosecutor was denied the opportunity to present to the court the basis for questioning the witnesses. Moreover, it is clear from the record that the state did have a good faith basis to question the witnesses, as the victim’s uncle testified that he may have told a state’s investigator that the defendant informed him that he had fled to Poughkeepsie.

       In response to the state’s argument that the claim is merely evidentiary in nature, the defendant argues that both Camera and Rowe involved incidents in which there actually was evidence of flight, whereas in this matter, the state questioned witnesses about a flight that never took place. In the context of this case, we conclude that such a distinction is without a difference.

       The state, relying on information that one witness had given to an investigator, sought to question the defense witnesses about the defendant’s having left the state. Thus, the relevance in putting forth its questions to the witnesses may have included the defendant’s consciousness of guilt, but also may have served to impeach their credibility to the extent that they denied that the event had occurred, and the state had a prior statement from a witness supporting the contrary. Further, once these witnesses denied that the event had occurred, the state may have been able to call the victim’s uncle as an impeachment witness. These evidentiary questions were never raised at trial, however, because no objection was made.

       In closing argument, the prosecutor remarked: “The second reason why [the victim is telling the truth] is [that] her testimony was corroborated by other witnesses. Dates, locations, those things that she told you about, they were corroborated by many people. . . . She said Vaseline [was used by the defendant during the assault] in New York, no Vaseline afterward. [S] came in and said, ‘she said Vaseline in New York and no Vaseline afterward.’ Little bits of corroboration of consistency from—from time to time in terms of what she told you.”

       Despite the defendant’s assertion that the court “prohibited” the state from eliciting such testimony and that by questioning the witness on this topic, the state may have “circumvented the court order,” the record reflects that the state merely abandoned the claim without an express ruling from the court.

       During cross-examination of S the following was elicited:

       The defendant argues that the admission of the evidence was improper because the admission of constancy of accusation testimony is limited to allegations related to the charged offenses, and allegations of prior uncharged misconduct do not fall within the ambit of the rule. See Conn. Code Evid. § 6-11 (c); State v. Ouellette, 190 Conn. 84, 100, 459 A.2d 1005 (1983) (“the [constancy of accusation] exception applies only to testimony of witnesses to whom the victim complains concerning the act charged” [emphasis added]).

       As the New Hampshire Supreme Court has explained, “ ‘[o]pening the door’ is . . . broadly applied to situations in which one party has created a misleading advantage, and the opponent is then permitted to use previously suppressed or otherwise inadmissible evidence to directly counter the misleading advantage. . . . The rule thus prevents a party from successfully excluding evidence favorable to his opponent and then selectively introducing this evidence for his own advantage, without allowing the opponent to place the evidence in proper context.” (Citations omitted.) State v. Morrill, 154 N.H. 547, 549-50, 914 A.2d 1206 (2006); see also State v. White, 155 N.H. 119, 124, 920 A.2d 1216 (2007) (“[T]he ‘opening the door’ doctrine subsumes within it two doctrines governing the admissibility of evidence. . . . The first doctrine, ‘curative admissibility,’ applies when inadmissible prejudicial evidence has been erroneously admitted, and the opponent seeks to introduce testimony to counter the prejudice. . . . The second doctrine, ‘specific contradiction,’ is more broadly applied to situations in which one party has introduced admissible evidence that creates a misleading advantage and the opponent is then permitted to introduce previously suppressed or otherwise inadmissible evidence to counter the misleading advantage.” [Citations omitted.]).

       For example, defense counsel concluded his cross-examination of S as follows:
      “[Defense Counsel]: So, in May, 2002, she told you that something happened that [the defendant] did to her when she was a little girl in New York; is that correct?
      “[The Witness]: Um-hmm (affirmative), yes, she did.
      “[Defense Counsel]: And she was about seven years old?
      “[The Witness]: That’s what she said.
      “[Defense Counsel]: And that’s all you knew; is that correct?
      “[The Witness]: That’s all I knew.
      “[Defense Counsel]: She never told you anything else?

      “[The Witness]: No.” (Emphasis added.)

       Prior to the alleged improper remarks by the prosecutor, defense counsel stated in closing that “at some point in May of 2002, according to [S], she told him about Poughkeepsie, or the way she put it, when I was little in New York. She didn’t tell him anything else, and apparently she told the same thing to his mother. Because when asked, he said she knew what he knew. And he didn’t know anything about [a prior residence] or any of those other places in Bridgeport.”

       Even if we assume arguendo that the remark constituted an impropriety, we fail to see how it possibly could have denied the defendant a fair trial. The record clearly reflects that although the victim’s credibility may have been a critical issue in the case, the testimony of S was invited by the defense, it was not severe, as it pertained to evidence already before the jury, the claim pertained only to one remark made in closing by the prosecutor and the court properly instructed the jury on the use of prior misconduct evidence. See State v. Williams, supra, 204 Conn. 540.

       On March 19, 2007, the defendant filed a postargument motion seeking to amend his appendix to his appellate brief to include the report generated by Bush detailing her interview of the victim. The report was not part of the record before the trial court and therefore is not properly before this court. See Practice Book § 61-10. Moreover, the parties are in agreement that the interview occurred, which forms the basis for the defendant’s claimed impropriety on appeal. Thus, the report itself is unnecessary for proper appellate review of the claimed impropriety. Accordingly, we deny the defendant’s request.

       Although Bush acknowledged that she had interviewed the victim during cross-examination, such acknowledgement was in response to a direct question posited by defense counsel, and her testimony was limited to the date and duration of the interview, without vouching for the credibility of the victim in any way.

       In closing argument, for example, defense counsel stated: “I won’t deny there’s something that she remembers from her childhood that, whether true or not, or whether she got it right or whether she got it wrong, that she told [S] and his mother in and around 2002, which would have been, I guess, five years—five years later, thereabouts, but that’s all she told them. [The prosecutor] is talking about, well, you know, the credibility of [the victim], and he’ll get into it, but until the night of the beef when she allegedly told her mother everything when they were alone, she had never mentioned anything at all about [the victim’s prior residences in Bridgeport] or any other address to anybody in—regarding that. So, the only—the only thing she ever mentioned in all those years was this incident in Poughkeepsie.”


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LOUIS SANTIAGO
    (AC 28185)
    DiPentima, McLachlan and Dupont, Js.

      Argued April 24
    officially released August 28, 2007

      Cyd O. Oppenheimer, special public defender, with whom were George G. Kouros, and, on the brief, Richard A. Reeve and Michael O. Sheehan, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, Sandra L. Tullius, senior assistant state’s attorney, and Chris A. Pelosi, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Louis Santiago, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). On appeal, the defendant claims that (1) the trial court improperly failed to instruct the jury on the credibility of accomplice testimony, (2) the state’s prosecu-torial improprieties during closing arguments deprived him of his due process right to a fair trial and (3) the court violated his constitutional right to confrontation under the sixth amendment to the United States constitution by refusing to allow a witness to articulate before the jury that witness’ reason for refusing to testify at trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Late in the evening of October 8, 2001, Pamela Torres drove her boyfriend, Marcos Jimenez, from their residence in New Britain to the defendant’s residence in Meriden. When they arrived, the defendant and Michael Jimenez, the brother of Marcos Jimenez, were on the porch in front of the residence. A short time later, they were joined by Justin Cross. Sometime around midnight, Cross suggested that they all drive to the Nelton Court housing project in Hartford to acquire drugs. Torres agreed to drive.

When they arrived at the housing project in the early morning hours of October 9, 2001, Torres drove into the parking lot and stopped in the vicinity of a parked car occupied by two individuals. Leroy Collier, sitting in the driver’s seat, had been selling packets of “angel dust” from his car. William Adams, sitting in the front passenger seat, had joined Collier at some point in the evening and was attempting to sell him some compact discs. Marcos Jimenez exited Torres’ vehicle and approached Collier, who rolled down the car window. As they were talking, the defendant, Cross and Michael Jimenez left the backseat of Torres’ vehicle. The defendant, holding a shotgun, proceeded to the driver’s side of Collier’s vehicle and pointed the weapon at Collier’s head. Adams opened the passenger door, raised his hands above his head, stated that he had nothing and started to walk away from the vehicle. Cross, armed with an AK-47, told him to stop and then shot him. As Adams fell to the ground, Cross instructed Michael Jimenez to check his pockets. Adams only had compact discs on his person.

Cross then returned to Torres’ vehicle. Michael Jimenez moved over to the driver’s side of Collier’s vehicle. The defendant, still pointing the shotgun at Collier, told him to get out of the car. Collier opened the door and stood directly in front of it. The defendant told Collier to give him everything in his pockets, and Collier turned over some packets of angel dust and approximately $40. The defendant told Michael Jimenez to check Collier’s pockets, but he found nothing. At that point, the defendant shot Collier in the abdomen and Collier fell backward into the car. Torres, along with the defendant, Cross, Marcos Jimenez and Michael Jimenez, drove away. Collier was later transported to a hospital and recovered from his injuries. Adams, however, had been fatally wounded.

The defendant was arrested and charged with felony murder, assault in the first degree, robbeiy in the first degree, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree. The case was tried before the jury in September, 2003, but the court declared a mistrial when the jury was unable to reach a verdict. The case was retried before a jury in June and July, 2004, with the same judge presiding. At the second trial, the jury heard testimony from Collier, the surviving victim, and, among others, Torres and Marcos Jimenez. Michael Jimenez, when called as a witness for the defense, invoked his fifth amendment right against self-incrimination. Cross, who had testified at the first trial, refused to testify at the second trial. His behavior, outside of the presence of the jury, was so disruptive at the second trial that the court found him in contempt and had him removed from the courtroom. Defense counsel requested that Cross make his refusal to testify before the jury, but the court denied that request and simply told the jurors that Cross was an unavailable witness because of his refusal to testify. The transcript of his testimony at the first trial was read to the jury.

At the conclusion of the second trial, the jury returned a verdict, finding the defendant guilty of all of the crimes charged except assault in the first degree. As to that charge, the jury found the defendant not guilty. The court accepted the verdict and sentenced the defendant to a total effective term of forty-five years incarceration. This appeal followed.

I

The defendant first claims that the court improperly failed to instruct the jury on the special considerations applicable to accomplice testimony with respect to Torres, Cross and Marcos Jimenez. Because the defendant failed to preserve his claim by requesting such a charge or by objecting to the charge as given, he seeks review under the plain error doctrine set forth in Practice Book § 60-5.

“The plain error doctrine is not ... a rule of review-ability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . The plain error doctrine 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 party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 239-40, 881 A.2d 160 (2005).

“Whether in the interest of justice we notice this failure to give the accomplice instruction as plain error depends in part on whether the failure was harmful. The failure to give the accomplice instruction would be harmful only if the absence of this instruction was likely to have affected the jury’s verdict. . . . Because the failure to give the accomplice instruction does not involve the violation of a constitutional right, it is the defendant’s burden to show its harmfulness.” (Citation omitted.) State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982).

The state has conceded that an accomplice witness instruction should have been given with respect to the testimony of Cross and Marcos Jimenez but claims that the court’s failure to do so was not harmful to the defendant. The state does not make that concession with respect to the testimony of Torres because she never was charged with any crimes in connection with the incident on October 9, 2001. Further, the state claims that no evidence was presented that indicated Torres was aware that the purpose in going to the Nel-ton Court housing project was to commit a robbery rather than to purchase drugs.

We will assume for the purposes of the defendant’s argument that the court should have given the accomplice witness instruction with respect to the testimony of all three witnesses. In determining whether that failure to instruct was harmful, we consider the factors set forth in State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005). Those factors include: “(1) the extent to which [the witness’] apparent motive for falsifying his testimony was brought to the attention of the jury, by cross-examination or otherwise; (2) the nature of the court’s instructions on witness credibility; (3) whether [the witness’] testimony was corroborated by substantial independent evidence; and (4) the relative importance of [the witness’] testimony to the state’s case.” Id., 472. Applying those factors to the present case, we conclude that the court’s failure to instruct the jury specially as to the witnesses’ motivations for testifying was harmless.

With respect to the first Patterson factor, the defendant, through his counsel, clearly brought to the attention of the jury the apparent motives of Torres, Cross and Marcos Jimenez to testify falsely during his cross-examination of those witnesses and during his closing arguments to the jury. Torres, although she had not been charged with any crimes in connection with the incident on October 9, 2001, may have been concerned that charges would be brought if she did not cooperate with the state in its prosecution of the defendant. Moreover, charges were pending against her boyfriend, Marcos Jimenez, at that time, and she may have hoped that her testimony would be helpful to him. Those possible motivations of Torres to testify falsely were all brought to the attention of the jury by defense counsel. Although Torres testified that the state had made no promises to her concerning her testimony, the jury was free to discredit that testimony if it chose to do so.

Cross, although he had already pleaded guilty to charges in connection with the death of Adams and had been sentenced to a term of twenty-eight years incarceration, admitted during his cross-examination that he knew that the state could facilitate a request for sentence modification to reduce the amount of time that he would have to serve. During closing arguments, defense counsel again raised the motivation of Cross to testify against the defendant in order to obtain a sentence modification.

At the time of the defendant’s second trial in June, 2004, Marcos Jimenez, who had refused to testify during the defendant’s first trial, was facing charges of felony murder, attempt to commit robbery and conspiracy to commit robbery in connection with the incident on October 9, 2001. Those charges had been brought after September, 2003, the time of the defendant’s first trial. During cross-examination, he was asked whether he expected that his cooperation with the state during the defendant’s second trial would result in favorable treatment in connection with his pending charges. He responded that he did not. During closing arguments, defense counsel again emphasized to the jury the apparent motive of Marcos Jimenez to falsify his testimony because he was facing the uncertain disposition of those serious charges.

Accordingly, with respect to the first consideration, the jury was well aware that the three witnesses had motives for falsifying their testimony. Defense counsel, during the cross-examination of Torres, Cross and Marcos Jimenez, and in his closing arguments, clearly brought those motives to the attention of the jury.

With respect to the second Patterson factor, the court’s instructions included an admonition that the jury should consider any possible motive, bias or personal interest of a witness when evaluating the credibility of that witness. Further, the court instructed the jury that a witness’ felony conviction was a factor that the jury could weigh in assessing the credibility of that witness. It could choose to reject the testimony of a person previously convicted of a serious crime or choose to accept it, or it could choose to accept part of the testimony and reject the remaining testimony. Thus, the court’s instructions suggested that the testimony of those three witnesses could be viewed as suspect.

With respect to the third Patterson factor, the testimony of Torres, Cross and Marcos Jimenez was consistent, and those witnesses corroborated each other’s testimony. Their testimony was also corroborated by the surviving victim, Collier, and by physical evidence found in the garage at the defendant’s residence. There was, therefore, substantial independent evidence of the defendant’s guilt.

Through Torres, Cross and Marcos Jimenez, the juiy heard testimony that only the defendant and Cross had weapons, that the defendant had a shotgun and Cross had an AK-47, that the defendant shot Collier and Cross shot Adams, that Collier turned over his drugs and approximately $40 to the defendant and that nothing was taken from Adams because he had only compact discs in his pocket. Although there may have been some minor variations as to some of the details surrounding the incident on October 9, 2001, in substance, the testimony of Torres, Cross and Marcos Jimenez was remarkably consistent.

Significantly, the testimony of those three witnesses was not the only evidence inculpating the defendant. The testimony of Collier was consistent with the testimony of Torres, Cross and Marcos Jimenez. His testimony was as follows. He was selling angel dust from the driver’s side of his parked car in the parking lot of the Nelton Court housing project on October 9, 2001. Adams, who wanted to sell Collier some compact discs, joined him and sat in the front passenger seat. A car entered the lot at approximately 2 a.m. and parked near Collier’s vehicle. A person from that car came over to him, and he rolled down his window. Shortly after that, the defendant, whom Collier identified in a photographic array several months after the incident and at trial, approached his car and pointed a shotgun at his head. Adams left the vehicle and said he had nothing. Collier heard a gunshot and, through his rearview mirror, saw Adams fall. The defendant, still pointing the gun at Collier, told him to get out of his car. While Collier was standing in front of the open driver’s side door, the defendant demanded everything that he had, and Collier gave him the remaining drugs and approximately $40. The defendant called over another person arid told him to check Collier’s pockets. That person frisked Collier and walked away when he found nothing. At that point, the defendant shot Collier in the abdomen, and Collier fell backward into the car.

In addition to Collier’s testimony, physical evidence taken from the defendant’s garage also corroborated the testimony of Torres, Cross and Marcos Jimenez. Shotgun shells discovered in that garage were consistent with the pellets and material removed from Collier’s abdomen during his surgery.

With respect to the fourth Patterson factor, although it is apparent that the testimony of the challenged witnesses was important to the state’s case, their testimony was corroborated by the victim’s testimony and the physical evidence as recited previously. When all of the factors are considered, we come to the conclusion that the court’s failure to give an accomplice testimony jury instruction was harmless and was not likely to have affected the jury’s verdict. Thus, it is unnecessary for us to notice plain error in this case.

II

The defendant next claims that the state’s prosecu-torial improprieties during closing arguments deprived him of his due process right to a fair trial. Specifically, he argues that the prosecutor improperly (1) expressed her personal opinion regarding the evidence presented at trial, (2) denigrated defense counsel, (3) disparaged the reasonable doubt standard and (4) mischaracterized the evidence. The defendant contends that the cumulative effect of those improprieties deprived him of a fair trial. We disagree.

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question .... As we have indicated, our determination of whether any improper conduct by the state’s attorney violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that [impropriety] was objected to at trial.” (Citations omitted; internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 361-62, 897 A.2d 569 (2006).

As the alleged impropriety occurred during closing argument, we set forth the applicable legal principles. “Prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . [B]ecause closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Nevertheless, [w]hile a prosecutor may argue the state’s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Citation omitted; internal quotation marks omitted.) State v. Necaise, 97 Conn. App. 214, 229-30, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).

A

The defendant claims that the prosecutor improperly vouched for her view of the evidence no less than nine times during the course of her closing and rebuttal arguments to the jury. The defendant argues that by using the phrases, “I believe,” “I think” and “the state believes,” the prosecutor interjected her personal opinion or beliefs into the summation of the trial.

“[A] prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions. ... It is not, however, improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom ....

“Although prosecutors generally should try to avoid using phrases that begin with the pronoun ‘I,’ such as T think’ or T believe,’ we recognize that the use of the word T is part of our everyday parlance and . . . because of established speech patterns, it cannot always easily be eliminated completely from extemporaneous elocution. . . . Furthermore, [t]he state’s attorney should not be put in the rhetorical straightjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows .... Therefore, if it is clear that the prosecutor is arguing from the evidence presented at trial, instead of giving improper unsworn testimony with the suggestion of secret knowledge, his or her occasional use of the first person does not constitute misconduct.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 435-36, 902 A.2d 636 (2006).

“Ladies and gentlemen, when you look at all of the evidence, you’re going to see that these discrepancies do not, in fact, create doubt. In fact, to some degree they should make the testimony more credible. I think you’d be very suspect if all the testimony was just a cookie-cutter of the rest of what every other witness said. Again, people have their own perceptions. They tell things in the way that they saw it and what they focused on at that particular time.” (Emphasis added.)

We conclude that the prosecutor’s comments were not improper. It was not improper for the prosecutor to comment on the evidence presented at trial and to argue the inferences to be drawn therefrom. It is clear from a review of her comments that she was referring to the evidence and not to her personal opinion of the defendant’s guilt or the witnesses’ credibility. The defendant would have us focus solely on the words, “I believe,” or, “the state believes,” without placing them in context with the remainder of her comments that referenced the evidence presented. “The mere use of phrases such as I would think, I would submit, and I really don’t think, does not transform a closing [argument] into the improper assertions of personal opinion by the [prosecutor].” (Internal quotation marks omitted.) State v. Mulero, 91 Conn. App. 509, 520, 881 A.2d 1039 (2005), cert. denied, 277 Conn. 912, 895 A.2d 792, cert. denied, 549 U.S. 862, 127 S. Ct. 149, 166 L. Ed. 2d 108 (2006).

B

The defendant next claims that the prosecutor denigrated the integrity and role of defense counsel by implying that his questions regarding the thoroughness and reliability of the police investigation were merely tactics intended to distract the jury from the ultimate question of the defendant’s guilt. Specifically, the defendant claims that the following remarks by the prosecutor were improper: “The defendant’s attorney wants you to look for doubt based on a police investigation. Once again, the old, you know the police did a lousy job, therefore, the defendant is not guilty. Well, I submit to you that is not true, and here the police did not do a lousy job.”

The defendant relies on State v. Luster, supra, 279 Conn. 414, in support of his argument. In Luster, our Supreme Court found that it was improper for a prosecutor to impugn the role of defense counsel. “In particular, [i]t is improper for a prosecutor to tell a jury, explicitly or implicitly, that defense counsel is employing standard tactics used in all trials, because such an argument relies on facts not in evidence and has no bearing on the issue before the jury, namely, the guilt or innocence of the defendant.” (Internal quotation marks omitted.) Id., 434. Here, the prosecutor’s single rhetorical statement was de minimis in comparison with the remarks found to be improper in Luster. Taken in context with the remainder of the prosecutor’s comments, we conclude that no impropriety occurred.

C

The defendant next claims that the prosecutor, in her rebuttal argument, disparaged the importance of reasonable doubt with the following statements: “But your job here in a trial—a trial is a search for truth. It’s not a search for doubt. . . . And remember, we do not have to answer every single question that comes up in a particular case.” The defendant argues that such comments undermine the state’s burden of proof in a criminal trial. Assuming, without deciding, that the comment was improper, we conclude that the remark did not deprive the defendant of his due process right to a fair trial for the reasons discussed in part II E.

D

The defendant’s final claim with respect to prosecu-torial impropriety is that the prosecutor, on two occasions, misstated the evidence with respect to the testimony of Marcos Jimenez as to whether he saw the defendant fire his shotgun prior to the incident on October 9, 2001. Specifically, the defendant claims that the prosecutor stated that the witness testified that the defendant fired that shotgun on previous occasions when no such evidence was presented. The defendant claims that by telling the jury that the evidence indicated that he fired the shotgun before October 9, 2001, the prosecutor invited the jury to make the inference that the shotgun belonged to the defendant, that the defendant knew how to use it and had fired it out of a car in the past, that the defendant had participated in a drive-by shooting and that the defendant had a violent or lawless disposition.

Marcos Jimenez testified at trial that he had seen the defendant with the same shotgun that he had on October 9, 2001, before the time of the incident. He further testified that he had observed the shotgun being operated. When asked for particulars, he responded: “I shot it out the car before.” When questioned further, he indicated that he did not fire the shotgun but that “[i]t was shot out the car before.”

During her closing argument, the prosecutor stated: “Marcos Jimenez has seen Louis Santiago shoot this very gun before, and he has seen the ammunition that Louis Santiago had in his garage at 57 Prescott Street.” In her rebuttal argument, she made the following statement: “Marcos Jimenez, with regard to all of these shells, Marcos Jimenez also told you that he’s seen these types of shells before. He has seen those shells in the defendant’s possession and he has seen the defendant use that gun before and actually fire that gun before.” The defendant claims that the prosecutor misstated the evidence, twice claiming that Marcos Jimenez saw the defendant fire the shotgun prior to the incident on October 9, 2001, when the evidence never established who had fired it on the previous occasions. The state argues that a reasonable inference can be drawn from the testimony of Marcos Jimenez that it was the defendant who had fired the shotgun. We agree that the prosecutor misstated the evidence.

“We long have held that a prosecutor may not comment on evidence that is not a part of the record and may not comment unfairly on the evidence in the record.” State v. Fauci, 282 Conn. 23, 49, 917 A.2d 978 (2007). “A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. . . . The rationale for the rule prohibiting the state from making such a reference is to avoid giving the jury the impression that the state has private information, not introduced into evidence, bearing on the case.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 587, 849 A.2d 626 (2004).

Here, the prosecutor’s statement that Marcos Jimenez testified that he saw the defendant fire the shotgun prior to the incident on October 9, 2001, is not accurate. Although Marcos Jimenez saw the defendant with that shotgun and the shotgun had been fired at that time, he never identified the defendant as the person who fired it. It would be speculation to conclude that the defendant fired it when there is no indication when this happened, where it happened, how many other individuals were present at the time it happened and the circumstances surrounding the firing of the shotgun. Accordingly, we conclude that the prosecutor misstated the evidence and that the statements were improper.

E

We now turn to whether the impropriety, namely, the improper introduction of a fact not in evidence and the possible undermining of the burden of proof in a criminal trial; see part II C; so infected the trial with unfairness as to make the defendant’s conviction a denial of due process. “In order to make this determination we consider the factors [set forth in State v. Williams, supra, 204 Conn. 540], specifically: the extent to which the impropriety was invited by the defendant’s conduct or argument, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the strength of the curative measures adopted and the strength of the state’s case.” State v. Camacho, 282 Conn. 328, 382, 924 A.2d 99 (2007). After examination of all of the factors, we conclude that the defendant was not deprived of his right to a fair trial by the prose-cutorial impropriety in this case.

We first note that the defendant’s conduct did not invite the prosecutor’s improper remarks to the jury. Second, the few instances of impropriety occurred only in her closing and rebuttal arguments, where we typically allow some latitude. Further, the remarks comprised a small portion of those arguments. Third, we do not view the statements made as “grossly egregious . . . [and] severe enough to mandate reversal.” (Internal quotation marks omitted.) Id., 383. Moreover, in determining whether prosecutorial impropriety was severe, we consider it highly significant that defense counsel failed to object to the remarks when made or to request curative instructions orto move for a mistrial. See State v. Fauci, supra, 282 Conn. 51. With respect to the fourth factor, whether the defendant had fired the shotgun on prior occasions was not central to the critical issues in the case.

The fifth Williams factor focuses on the strength of the curative measures taken by the trial court. Because the defendant did not object to the prosecutorial impropriety, the court did not give a specific instruction directed to the improper remarks. Although this does not preclude us from reviewing the defendant’s claim, the failure to object is important. The defendant “bears a significant degree of responsibility for the fact that this impropriety went uncured. ... In addition, we note that a failure to object demonstrates that defense counsel presumably [did] not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Luster, supra, 279 Conn. 445-46.

Finally, the remaining Williams factor takes into consideration the strength of the state’s case. The state’s case was strong. The testimony of Torres, Cross and Marcos Jimenez was consistent as to the defendant’s actions on October 9, 2001. The testimony of Collier, the surviving victim, was consistent with that of the other witnesses and inculpated the defendant. Finally, physical evidence retrieved from the garage at the defendant’s residence further supported the finding of guilt. Accordingly, we conclude that in the context of the entire trial, there is no reasonable likelihood that the jury’s verdict would have been different absent the sum total of the prosecutor’s comments. See State v. Camacho, supra, 282 Conn. 367. Accordingly, the defendant was not deprived of his due process right to a fair trial.

Ill

The defendant’s final claim is that the court violated his constitutional right to confrontation under the sixth amendment to the United States constitution by refusing to allow Cross to articulate in front of the jury the reason for his refusal to testify at the defendant’s second trial. The defendant argues that the court’s refusal deprived him of a face-to-face meeting with this witness for the prosecution. Alternatively, he claims that if the court’s ruling was an evidentiary issue, the court abused its discretion.

The court had been alerted by counsel that Cross, an incarcerated witness, was present in the courthouse, but had indicated that he would refuse to testify. Outside of the jury’s presence, the court questioned Cross as to his willingness to testify and informed him of his obligation to do so. Cross became quite disruptive, cursed and stated that he would not say anything. The court, warning Cross that he could be found in contempt of court, did find him in contempt when he continued to refuse to testify and continued to be disrespectful in the courtroom. The court had him physically removed.

Defense counsel requested that Cross be brought back into the courtroom so that he could articulate his refusal to testify in front of the jury. Defense counsel argued that Cross’ refusal to testify, in a belligerent and profane manner, would be relevant because it would demonstrate his “violent streak [when] not on angel dust. And the jury could then think, [if] this is the way he is in court or was in court; what was he like on the street on October 9, 2001?” Defense counsel further objected to the reading of Cross’ testimony from the first trial by the prosecutor.

Defense counsel presented no legal authority supporting his request. The court recessed for a short time to research the issue and, when it reconvened, indicated that it found no authority for such a request. The court had the jury brought into the courtroom and indicated that Cross was an unavailable witness because he refused to testify. The court further indicated that Cross had testified in September, 2003, and had been cross-examined at that time, and that the law permitted that former testimony to be used in lieu of the testimony of an unavailable witness.

The court’s denial of the defendant’s request to require Cross to state in front of the jury his refusal to testify at the defendant’s trial was not a violation of the defendant’s constitutional right of confrontation. “[T]he state’s use of hearsay evidence against an accused in a criminal trial is limited by the confrontation clause of the sixth amendment. . . . The sixth amendment to the constitution of the United States guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. This right is secured for defendants in state criminal proceedings. . . . [T]he primary interest secured by confrontation is the right of cross-examination. . . .

“Traditionally, for purposes of the confrontation clause, all hearsay statements were admissible if (1) the declarant was unavailable to testify, and (2) the statement bore adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). . . . [Hjowever, the United States Supreme Court [subsequently] overruled Roberts to the extent that it applied to testimonial hearsay statements. See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). ... The court held [in Crawford] that such testimonial hearsay statements may be admitted as evidence against an accused at a criminal trial only when (1) the declarant is unavailable to testify, and (2) the defendant had a prior opportunity to cross-examine the declarant.” (Citations omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 712-13, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

Here, the testimony at issue, Cross’ testimony at the defendant’s first trial, is clearly testimonial hearsay evidence. Accordingly, the confrontation clause would bar the state’s use of such testimony unless Cross was unavailable to testify at the defendant’s second trial, and the defendant had a full and fair opportunity to cross-examine Cross at the defendant’s first trial. The defendant does not contest the fact that Cross was unavailable because of his refusal to testify. Further, although defense counsel indicated that he would like the opportunity to cross-examine Cross again, he did not contest the fact that he had a full and fair opportunity to cross-examine Cross at the defendant’s first trial. Both the direct examination and the cross-examination of Cross were read to the jury at the defendant’s second trial. Accordingly, we conclude that the court’s ruling did not deprive the defendant of his constitutional right to confrontation.

For those reasons, we conclude that the court’s ruling, which permitted the admission of Cross’ testimony without first requiring him to articulate before the jury his refusal to testify, was an evidentiary ruling. “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. . . . When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citation omitted; internal quotation marks omitted.) State v. LaVallee, 101 Conn. App. 573, 578, 922 A.2d 316 (2007).

We conclude that the court did not abuse its discretion in denying the defendant’s request. Cross was called as the state’s witness. The court indicated that the defendant could subpoena Cross and have him testify on behalf of the defendant but that there was no authority to require him to articulate his reason for refusing to testify as the state’s witness. The defendant did not call Cross as his witness. Further, the court had serious concerns about security. Cross had been totally uncooperative and had been disrespectful to the court, which found him in contempt. Under those circumstances, with no legal authority whatsoever to support such a request, we cannot conclude that the court’s ruling was an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       After the parties filed their appellate briefs, our Supreme Court rendered its decision in State v. Fauci, 282 Conn. 23, 917 A.2d 978 (2007), in which it concluded that the term “prosecutorial impropriety” is more appropriate than the traditional term “prosecutorial misconduct.” Id., 26 n.2. Although the parties have briefed the defendant’s claim utilizing the nomenclature of prosecutorial misconduct, we use the term “prosecutorial impropriety” in our analysis of the defendant’s claim.

       “Angel dust” is also known as phencyclidene or PCP.

       Michael Jimenez had similar charges pending against him in connection with the incident on October 9, 2001.

       “[WJhere it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if [she] assisted or aided or abetted in the commission, of the offense with which the defendant is charged. . . . [I]n order for one to be an accomplice there must be mutuality of intent and community of unlawful purpose.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 227, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).
      “Because of the various motives an accomplice may have for falsifying his testimony, the jury should, where the evidence so warrants, be admonished to scrutinize that testimony with particular care in light of any such disclosed or undisclosed, but apparent, motives.” State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980).

       As previously noted, the transcript testimony of Cross from the first trial was read before the jury in the second trial. The defendant was represented by the same attorney in both trials.

       The court instructed the jury on witness credibility, in part, as follows: “As you weigh the testimony of the witnesses, consider the probability or improbability of their testimony. Consider their appearance, conduct and demeanor while testifying in court, and any interest, bias, prejudice or sympathy or lack of interest, bias, prejudice or sympathy which a witness may apparently have for or against the state or the accused or in the outcome of the trial. . . .
      “You should harmonize the evidence as far as it can reasonably be done. Use all of your experience, your knowledge of human nature and of the motives which influence and control human conduct, and test the evidence against that knowledge. In short, bring to bear upon the testimony of the witnesses the same considerations and use the same sound judgment that you apply to questions of truth and veracity as they present themselves to you in everyday life.
      “You are entitled to accept any testimony which you believe to be true and to reject, either wholly or in part, the testimony of any witness you believe has testified untruthfully or erroneously. The credit you will give to the testimony offered is, as I’ve told you, something which you alone must determine. Where a witness testifies inaccurately and you do or don’t think the inaccuracy was consciously dishonest, bear that in mind and scrutinize the whole testimony of that witness. The significance you attach to it may vary more or less with the particular fact to which the inaccuracy existed or with the surrounding circumstances.”

       The court instructed the jury: “There was testimony here of previous felony convictions on the part of some of the witnesses. That evidence was offered and admitted for one purpose only: to address the question of the credibility or believability of those witnesses. A witness’ conviction of a prior felony may be weighed by you, the jury, in testing the credibility of that witness, but for that purpose only. You may consider that, everything else being equal, you would not believe the testimony of a person who has committed a serious crime as readily as you would believe the testimony of a person of good character. But you’re not required to disbelieve a witness simply because the witness has previously been convicted of a felony. It’s something you may take into account in judging the witness’ credibility, if you find that it bears on that credibility.”

       The defendant claims that Collier’s testimony cannot be considered substantial independent evidence of guilt. The defendant argues that “it is apparent from the verdict that the jury did not find . . . Collier to be credible: the jury acquitted [the defendant] of assault despite . . . Collier’s allegation that [the defendant] was the individual who shot him.” First, “[w]e cannot speculate ... as to how and why the jury arrived at its verdict.” (Internal quotation marks omitted.) State v. Smith, 70 Conn. App. 393, 404, 797 A.2d 1190, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002). Second, the jury did find the defendant guilty of robbery in the first degree, the charge that related to the taking of the drugs and money from Collier. It appears, therefore, that the identity of the defendant was not questioned by the jury.

       The defendant challenges the following comments of the prosecutor:

        “The state believes that in reviewing the evidence, you’ll be as certain of this defendant’s guilt as Leroy Collier was when he selected the photograph of this person, this defendant, Louis Santiago, as the person that robbed him and shot him on the night of October 9, 2001. You will fmd that the state has met its burden of proof.” (Emphasis added.)
      “The three elements that the state believes that it has proved beyond a reasonable doubt are: Number one, that the defendant, acting alone or with other persons, committed a robbery or attempted to commit a robbery. Two, that the death of William Adams was caused by this defendant, Louis Santiago, or by another participant, and that William Adams was not a participant in the crime. . . . Three, that the defendant or another participant caused the death of William Adams in the course of and in furtherance of the robbery.” (Emphasis added.)

        “[The] state believes that it has satisfied beyond a reasonable doubt [the three elements of felony murder], and we ask that you look at the evidence and recall the testimony of Leroy Cross, Marcos Jimenez, Pamela Torres and Leroy Collier, as well as looking at what the doctors told you and what Edward Jachimowicz [a firearms and toolmark examiner with the department of public safety’s forensic science laboratory] told you and also what Detective [Andrew] Weaver [of the Hartford police department] told you about finding that .223 caliber cartridge case in the area where Justin Cross was standing. And, if you recall, that’s the area that Marcos Jimenez pointed out is pretty much the area where that .223 cartridge case was found. In doing so, [the] state believes that you will find that it has proved beyond a reasonable doubt that the defendant is guilty of the crime of felony murder.” (Emphasis added.)
      “In the course of committing the robbery, the defendant or another participant must be armed with a deadly weapon and, again, if you would refer back to what I’ve earlier said about whether the defendant committed a robbery, / think you will find that he intended to take property from Leroy Collier and that he took that property from Leroy Collier by the use of force or the threatened use of physical force to prevent the resistance or overcoming by Leroy of the taking of his property.” (Emphasis added.)
      “And we’ve talked about what an attempted robbery is and, in fact, gone through a lot of what the evidence is already with regard to whether this defendant intentionally aided Justin Cross in committing the robbery of— the attempted robbery of William Adams. I believe that in looking at all of the evidence, you will find beyond a reasonable doubt that this defendant did intentionally aid.” (Emphasis added.)
      “Again, [the] state believes that if you look at the facts, you will make the determination that this defendant conspired to commit robbery in the first degree.” (Emphasis added.)
      “Ladies and gentlemen, I’m going to close at this point. I’ll have an opportunity to speak to you again briefly, but the state believes that based on all the evidence presented that you will find this defendant, Louis Santiago, guilty beyond a reasonable doubt as to each of the five crimes with which he is charged, and we ask you to find Louis Santiago guilty as charged.” (Emphasis added.)

       Because we conclude that there was no impropriety, we need not reach the second prong of the inquiry, which is whether the defendant was harmed by the alleged impropriety. See State v. Necaise, supra, 97 Conn. App. 232 n.14.

       In Luster, the following remarks were found to be improper: “It seems to [have] become fashionable of late to put the police department on trial; let’s try the cops. . . . [I]t’s a desperate move to attack the police in a situation such as this. It’s diverting attention from the real issue .... Putting the cops on trial is a desperate move; it tries, it tries to make you think that the cops did something wrong . . . .” (Internal quotation marks omitted.) State v. Luster, supra, 279 Conn. 433.

       The testimony at issue by Marcos Jimenez was as follows:
      “[The Prosecutor]: Had you ever seen [the defendant] with this shotgun before?

        “[The Witness]: Yes.
      “[The Prosecutor]: And when you saw him with the shotgun before, had you ever seen this shotgun work?
      “[The Witness]: Yes.
      “[The Prosecutor]: How did you see it work?
      “[The Witness]: I shot it out the car before.
      “[The Prosecutor]: It was—you had actually shot it out the car?
      “[The Witness]: No.
      “[The Prosecutor]: Who had shot it out the car?
      “[The Witness]: It was shot out the car before.
      “[The Prosecutor]: It was shot out the car before. So, you knew it was a working shotgun?
      “[The Witness]: Yes.”

       We note that the court’s instructions more than adequately informed the jury of the presumption of innocence and the state’s burden to prove the elements of the crimes charged beyond a reasonable doubt.

       Additionally, even though the court gave no specific curative instructions, the court reminded the jury in its general instructions following closing arguments that the statements of counsel during those arguments were not evidence: “Keep in mind that arguments and statements by counsel in final arguments or during the course of the case are not themselves evidence. You should not consider as evidence counsel’s recollection of the evidence, nor their personal belief as to any facts or as to the credibility of any witness, nor any facts which an attorney may have presented to you in argument from that attorney’s knowledge, which was not presented to you as evidence during the course of the trial. If there’s any difference between what either counsel recalled as the evidence and what you recall as the evidence, follow your recollection and no one else’s.” “[T]he jury [is] presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Russell, 101 Conn. App. 298, 326, 922 A.2d 191 (2007).

       “In deteradning whether the declarant is unavailable, we employ the definitions set forth in rule 804 (a) of the Federal Rules of Evidence.” State v. Schiappa, 248 Conn. 132, 141-42, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). Rule 804 of the Federal Rules of Evidence provides in relevant part: “(a) Definition of unavailability. ‘Unavailability as a witness’ includes situations in which the declarant ... (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so . . . .” Fed. R. Evid. 804 (a) (2).

       The court stated: “I don’t believe that I can keep him on the [witness] stand, in control, for the length of time to have his testimony read. So, I think that’s—while—I mean, give me a scenario for managing Mr. Cross, who is a large, hard to control individual, who has been convicted of murder, if I remember.”