author: LAVINE, J.

text:
    STATE OF CONNECTICUT v. SIDNEY WADE
    (AC 27397)
    DiPentima, Gruendel and Lavine, Js.

      Argued November 30, 2007
    officially released March 25, 2008

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroti, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

This case requires us to determine whether a layperson who provides illegally obtained prescription medications to a drug abuser who subsequently dies as a result of ingesting the medications is guilty of manslaughter in the first degree because he acted under circumstances evincing an extreme indifference to human life and engaged in conduct that created a grave risk of death to another person, thereby causing the death of another person. See General Statutes § 53a-55 (a) (3). As a matter of law, we conclude that, under the factual circumstances of this case, the elements of the statute have not been met but that the evidence was sufficient to support a conviction of manslaughter in the second degree.

The defendant, Sidney Wade, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), two counts of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b) and one count of manslaughter in the first degree in violation of § 53a-55 (a) (3). On appeal, the defendant claims that (1) as a matter of law, there was insufficient evidence by which the jury could have found him guilty of manslaughter in the first degree and (2) the trial court improperly charged the jury with respect to all of the charges against him. We agree with the first but not the second of the defendant’s claims.

On the basis of the evidence presented, the jury reasonably could have found the following facts. At about 3 p.m. on April 14, 2003, Elio Colon found his twenty year old girlfriend, Rebecca J. Calverley, unresponsive on an air mattress in the basement of 35X Darling Street in Southington, an apartment Colon shared with his family. Medical assistance was summoned by the defendant, but the victim was pronounced dead at the hospital. According to deputy chief medical examiner Edward T. McDonough, the victim died from methadone and fentanyl toxicity, as there was enough of each of the substances in the victim’s body, alone or in combination, to cause her death.

The apartment was known as a place where individuals who abuse drugs went to use them. Marijuana, cocaine, angel dust, OxyContin and other pharmaceuticals were available there. When the police searched the premises, they found evidence of drugs and drug paraphernalia such as razor blades, pipes, marijuana roaches, cut straws and bags containing plant-like material.

On April 13, 2003, the day prior to the victim’s death, Freeman Heath saw Colon and the defendant, who was twenty-seven years old at the time of the victim’s death, standing in front of the apartment. At that time, the defendant was in possession of a bag containing Methadose pills and fentanyl lollipops. The defendant described the lollipops as morphine lollipops and gave one to Heath. Heath knew that the lollipops contained a narcotic pain reliever that was used by cancer patients who have a tolerance for narcotics. He also knew that ingesting the lollipop could result in death. It took about thirty or forty minutes for Heath’s lollipop to dissolve. As a result of ingesting the lollipop, Heath felt sedated, numb, euphoric and high. He felt the effects of the lollipop until approximately 1:30 or 2 a.m. the next day.

Later that day, Heath, Scott Finnemore and Galen Reynolds went to the apartment in search of a gasoline can because Reynolds’ car had run out of gasoline. The victim was present in the residence and volunteered the use of a gasoline can that was at her home. After the victim, Heath, Finnemore and Reynolds had retrieved the gasoline can and gone to a gasoline station, they returned to the apartment. Heath and Finnemore encountered the defendant outside between 7:30 and 8 p.m. The defendant asked Finnemore if he was “straight” and then showed him a plastic bag containing pills. The defendant handed Finnemore a pill. Finnemore took the pill and saw the word Methadose printed on it. Each pill contained forty milligrams of methadone and was scored so that it could be divided into four pieces. Finnemore knew that Methadose was a strong medication and potentially dangerous. He also knew that it was a prescription medication and that it had been obtained illegally.

The group moved inside to the kitchen. The defendant asked Finnemore if he wanted another pill and brought out the bag containing them and offered them to Finnemore, Heath and the victim. The defendant took out a pill, broke it into four pieces and placed it on a counter. Finnemore testified that he and Heath each took one quarter of the pill and that the victim took the other half. According to Heath, however, the victim told him that she took the whole pill. Heath knew that the pills were strong medication and expressed concern to the victim. The victim assured Heath that she had taken the drug before and could handle it. Heath testified that he knew the victim was a cocaine user.

The group moved to the basement where everyone, except the victim, smoked marijuana. The defendant then offered them fentanyl lollipops, which were individually wrapped in a rectangular package bearing the brand name Actiq. Under the word Actiq, in parenthesis, appeared the words “oral transmucosal fentanyl citrate.” The box was imprinted with “1600 meg” and Rx only. The package contained numerous warnings, including “see insert for dosage and administration,” “[o]nly for patients already taking opioids (narcotics) such as fentanyl or morphine,” and, “WARNING: Keep out of reach of children.” According to Shaquita Jones, one of the people in the apartment at the time, one week earlier, the defendant had offered her one of the lollipops and told her that it was not a regular lollipop but a medical one. Jones did not take a lollipop on that occasion, but the defendant did. He told Jones that the lollipop made one feel “real good,” that one is not bothered by anything and “could get along with [one’s] worst enemy.”

The night of April 13, 2003, the defendant gave a lollipop to some of the people, including the victim, in the basement of the apartment. The victim had difficulty removing the wrapper and went upstairs with the defendant for about five minutes. When they returned to the basement, the victim had the lollipop in her mouth. The defendant appeared to have taken a bite of the victim’s lollipop, which also was passed around for others to taste. Approximately half an hour later, the victim had finished her lollipop and asked the defendant for another one. The defendant gave the victim a second lollipop, which she ate. Later, the defendant gave Finnemore a lollipop, which Finnemore ate on his way home. Finnemore was aware of the potential for overdosing on drugs and had overdosed himself on methadone in 1999. The defendant also ate a lollipop while he was in the basement with the rest of the group.

The defendant left the apartment between 2 a.m. and 3 a.m. on April 14, 2003, and spent the rest of the night with the mother of his child, Kelly Bartosiewicz. He returned to the apartment at 12:30 p.m. that day and fell asleep. He was awakened by Colon’s mother, who told him that the victim was not breathing. The defendant ran to the basement and saw Colon breathing into the victim’s mouth. The defendant told Colon to move the victim upstairs and then ran outside to borrow a neighbor’s telephone to call 911. When the police arrived at approximately 3 p.m., the victim was lying on the floor, just inside the door of the apartment and a neighbor was administering cardiopulmonary resuscitation. The police could not detect a pulse in the victim; she was not breathing and her skin was cold to the touch and blue. The victim was taken to Bradley Memorial Hospital where she was pronounced dead.

Officer Jeremy Busa of the Southington police department asked the defendant if he had seen the victim the day or night before. The defendant initially told Busa that he had not seen the victim. Ten minutes later, after Busa had talked to others in the apartment, he again asked the defendant if he had seen the victim the night before. The defendant then responded that he had been in the apartment for a short time the night before and that he did not know what time he had seen the victim. The defendant also told Busa that to his knowledge, the victim had not been under the influence of drugs or alcohol. Later that day, the defendant gave a statement to the police. When asked if there were any drugs in the apartment the night before, the defendant responded that only marijuana was present. When the police searched the basement, they found an Actiq wrapper, among other things.

Approximately one week later, Jones was at the apartment with Reynolds, Colon and the defendant. According to Jones, when the subject of the victim’s death came up, the defendant told Reynolds to tell Heath to “keep his mouth shut” because “people know” where Heath lives. Also at about that time, the defendant told Kelly Ryzak, with whom he had an on and off relationship, that the victim had overdosed and died. A few weeks after that, the defendant told Ryzak that on the night the victim died, he had given drugs to her, that no one had seen him do so and that he did not give her enough for her to have died. When Bartosiewicz asked the defendant about the victim’s death, he became upset and did not want to talk about the subject.

A number of expert witnesses testified about the medications that killed the victim and other pharmacological matters. Edward John Barbieri, who holds a doctorate degree in pharmacology, testified that fentanyl, like morphine, is an analgesic and has some of the side effects of morphine, such as sedation and respiratory depression. Methadone has the same properties and effects. He also testified that each person responds to drugs differently. Some people are very sensitive to drugs, and some are very resistant to drugs. The variability affects the time in which a person will demonstrate the effects of a drug after ingesting it. Morphine and fentanyl kill by respiratory depression. According to Barbieri, a person may respond to a drug and have good analgesic effects and be very resistant to the respiratory depressant effects, but that “may catch up” with the person later as the level of the drug rises in the blood. A person, therefore, could take a fentanyl lollipop and act normally for a period of time and die several horns later.

Gerald J. DeStefano, a pharmacist, is a senior drug control agent at the department of consumer protection. The drug control division regulates the flow of prescription drugs within the state. At trial, samples of a Methadose pill and a fentanyl lollipop were introduced through him. He testified about the various schedules of controlled substances and the cost of certain medications. On the basis of his training and experience, DeStefano testified that individuals who illegally obtain prescription narcotics sometimes give them to other users. His testimony was based on “basically hundreds of nurses, doctors, pharmacists over the last ten years who have stolen prescription drugs and who have told me that they’ve shared them with other people.” He also acknowledged that there is a huge market for those drugs.

I

The defendant’s first claim is that, as a matter of law, the state failed to produce sufficient evidence by which he could be convicted of manslaughter in the first degree in violation of § 53a-55 (a) (3). Specifically, the defendant claims that, under the circumstances, there was insufficient evidence that he acted recklessly with extreme indifference to human life, which created a grave risk of death to another person. We agree with the defendant.

A

Initially, we consider whether there was sufficient evidence to convict the defendant of a violation of § 53a-55 (a) (3). “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Hicks, 101 Conn. App. 16, 21, 919 A.2d 1052 (2007).

During trial, the state filed an amended long form information. Count five alleged that the prosecutor “accuses [the defendant] of the crime of manslaughter in the first degree in violation of § 53a-55 (a) (3) and alleges that on or about April 13, 2003 at or near 35 Darling Street, Apartment X, Southington, Connecticut, the defendant . . . under circumstances evincing an extreme indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person (to wit: Rebecca Calverley) and thereby caused the death of Rebecca Calverley.”

General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” “For the defendant to have been found guilty of this offense, the state had to prove beyond a reasonable doubt the following: (1) that the defendant engaged in conduct that created a grave risk of death) (2) that in doing so the defendant acted recklessly) (3) under circumstances evincing an extreme indifference to human life) and (4) the defendant caused the death of the victim. . . . Additionally, the state had to prove that the defendant had the general intent to engage in conduct that created a grave risk of death to another person under circumstances evincing extreme indifference to human life.” (Citations omitted; emphasis added.) State v. Best, 56 Conn. App. 742, 754, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000). In other words, we must ask if it was reasonably foreseeable to the defendant that the victim would die if he gave her the medication at issue. See, e.g., Lofthouse v. Commonwealth, 13 S.W.3d 236, 239 (Ky. 2000) (intent of statute to have causation issue framed in terms of whether result either foreseen or foreseeable by defendant as reasonable probability).

The defendant contends that the state failed to prove beyond a reasonable doubt that he knew that the medications he gave the victim were likely to cause her death or that a reasonable person under the circumstances would have known that they were likely to cause her death. Furthermore, relying on State v. Best, supra, 56 Conn. App. 742, the defendant argues that ordinary recklessness is not sufficient for a conviction of manslaughter in the first degree but that the state must prove that his conduct constituted an aggravated form of recklessness. Id., 755. Our task, therefore, is to construe the elements of § 53a-55 (a) and to apply them to the facts reasonably found by the jury.

“Statutory construction is a question of law and, therefore, our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Strich, 99 Conn. App. 611, 633, 915 A.2d 891, cert. denied, 282 Conn. 907, 920 A.2d 310, cert. denied, 552 U.S. 901, 128 S. Ct. 225, 169 L. Ed. 2d 171 (2007). “We are required to construe a statute in a manner that will not thwart [the legislature’s] intended purpose or lead to absurd results. . . . We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Internal quotation marks omitted.) State v. Coscuna, 59 Conn. App. 434, 440, 757 A.2d 659 (2000).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the juiy is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Pearson, 97 Conn. App. 414, 419-20, 904 A.2d 1259, cert. denied, 280 Conn. 934, 909 A.2d 963 (2006).

“A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” General Statutes § 53a-3 (13). “In looking to the statute itself, the legislature has provided some guidance as to the level of indifference it intended in § 53a-55 (a) (3) by modifying the level of indifference with the adjective extreme. Extreme is defined as existing at the highest or greatest possible degree, and is synonymous with excessive. . . . The adjective grave is defined as very serious: dangerous to life . . . .” (Citation omitted; internal quotation marks omitted.) State v. McMahon, 257 Conn. 544, 553-54, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002). Our Supreme Court has “concluded that the mental state required for a violation of § 53a-55 (a) (3) was clear. . . . Recklessness involves a subjective realization of a risk and a conscious decision to ignore that risk . . . .” (Citation omitted; internal quotation marks omitted.) Id., 555, quoting State v. Bunkley, 202 Conn. 629, 522 A.2d 795 (1987).

In assessing whether the defendant’s giving the victim the medications at issue was an act evincing extreme indifference to human life that created a grave risk of death, we are bound to consider the circumstances in which they occurred. The evidence discloses that the defendant and the victim were part of what is commonly referred to as the drug culture in that they ingested illegal substances and medication not prescribed for them in association with other individuals. The jury reasonably could have inferred from the evidence that the two of them attended a party at the apartment for the purpose of getting high. Although at least one of the witnesses had experienced the toxic, but not lethal, effects of ingesting an illegal substance or medication that had not been prescribed for him, there was no evidence that the defendant had had a similar experience. There was evidence that the defendant was in possession of the fentanyl lollipops and offered them to others as much as one week before the victim’s untimely death. He himself previously had ingested fentanyl and found the experience pleasurable. Other people at the party ingested both the Methadose and fentanyl and did not have a toxic reaction. As Barbieri testified, the potentially toxic effect of drugs varies from person to person. Moreover, DeStefano testified that members of the health care profession in large numbers are known to obtain prescription medications and share them with others or sell them. In addition, evidence of the toxic effects of Methodose and fentanyl was presented to the jury by a series of expert witnesses. There was no evidence that the defendant actually possessed such knowledge.

The state has argued that the defendant acted under circumstances evincing extreme indifference to human life that created a grave risk of death by giving the victim more than one type of prescription medication in multiple dosages over a short period of time. The state claims that it is common knowledge that prescription medication has inherent risks and that its administration, therefore, must be overseen by a physician. The state also argues that it is common knowledge that taking certain medications in combination is inherently dangerous. The state, therefore, concludes that a reasonable person would not give another person either a combination of medications or multiple dosages of them over a short period of time because doing so creates a substantial risk of death. We are not persuaded that the average person knows the potentially toxic effects of Methadose and fentanyl taken individually or in combination. Moreover, the circumstance in which the defendant gave the victim the medications was one in which the participants voluntarily sought and took medications and illegal substances in large quantities.

In our view, the case law from this jurisdiction and others that has been cited by the parties would support the state’s position only if the defendant either had some specific reason to know of the grave risk created by the medications individually, or in combination, or engaged in some conduct evincing a more blatant disregard for the risks imposed. The parties have identified, and we could find, only one Connecticut case in which a defendant was convicted of manslaughter in the first degree for providing drugs to a person who died as a result of using those drugs. See St,ate v. Wassil, 233 Conn. 174, 658 A.2d 548 (1995). The issue in that case, however, was whether there was sufficient evidence that delivering heroin to the victim was the proximate cause of death; id., 181; not whether it was foreseeable that giving the subject medication to the victim would result in her death. Moreover, the facts of that case are unlike the facts here. In Wassil, the defendant and the victim injected heroin into their own bodies. Id., 177. Soon after the victim injected himself, he lost consciousness. Id., 177-78. The defendant refused the advice of another to summon medical assistance immediately. Id., 178. It was not until more than an hour later, after the victim stopped breathing, that the defendant summoned help. Id. In the case before us, the defendant immediately called 911 upon hearing that the victim was unresponsive. Although the defendant did initially deny being at the party, we cannot say that the evidence proves beyond a reasonable doubt that the defendant in this case demonstrated an extreme indifference to human life by failing to get immediate medical assistance for the victim, as the defendant in Wassil did. See also Palmer v. State, 871 P.2d 429, 431 (Okla. Crim. App. 1994) (defendant left scene when asked to summon help for addict who had immediate adverse reaction to cocaine supplied by defendant).

Lofthouse v. Commonwealth, supra, 13 S.W.3d 236, is instructive. There, the defendant’s conviction of reckless homicide required “proof beyond a reasonable doubt that there was a substantial and unjustifiable risk that [the victim] would die if he ingested the cocaine and heroin furnished to him by [the defendant], and that the risk of [the victim’s] death was of such nature and degree that [the defendant’s] failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation . . . i.e., that [the victim’s] death as a result of ingestion of the cocaine and heroin was either foreseen or foreseeable by [the defendant] as a reasonable probability . . . .” (Citations omitted.) Id., 241. The Supreme Court of Kentucky concluded that the commonwealth “needed to prove not only the toxic qualities of cocaine and heroin, but also that a layperson, such as [the defendant], should reasonably have known that there was a substantial risk that the amount of cocaine and heroin ingested by [the victim] would result in his death.” Id.

“Although the medical examiner . . . testified that the amount of morphine found in [the victim’s] body can be fatal and that the amount of cocaine found in his body could be fatal, there was no proof that [the defendant] or any other layperson should have been aware that there was a substantial risk that [the victim] would die from ingesting those substances, or that [the defendant’s] failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. Such information is not common knowledge. On the other hand, there was evidence that heroin was something new to [the defendant]; that he, himself, had previously ingested dosages of both the cocaine and the heroin in question without fatal result; and that he, himself, ingested the same dosages of cocaine and heroin as [the victim] on the same occasion, yet remained coherent enough to assist in efforts to save [the victim’s] life. The Commonwealth proved only that the dosages were fatal to [the victim]. That alone was insufficient to convict [the defendant] of reckless homicide.” (Emphasis added; internal quotation marks omitted.) Id., 241-42.

Conversely, a conviction of murder in the second degree was upheld against a defendant who supplied very potent cocaine to a victim, who had an immediate and severe reaction to the drug when he administered it to himself. See Palmer v. State, supra, 871 P.2d 431. The defendant in Palmer was aware that two weeks prior to the victim’s death, the victim had had a severe reaction to drugs supplied by the defendant. Id., 433. The Oklahoma Court of Criminal Appeals concluded that “a reasonable person in [the defendant’s] position would have known that giving [the victim] very pure cocaine was imminently dangerous and created a high degree of risk of death. We do not hold, however, that every delivery of a controlled dangerous substance resulting in death constitutes second degree murder.” (Emphasis added.) Id.

The New York Court of Appeals upheld the conviction of a defendant for manslaughter in the second degree in People v. Cruciani, 36 N.Y.2d 304, 327 N.E.2d 803, 367 N.Y.S.2d 758 (1975). “On this appeal from a conviction of manslaughter in the second degree, the proof showing, among other things, that defendant . . . injected Margaret Heur with heroin (1) when, in his own words, she was already ‘completely bombed out on downs’ (depressants like morphine into which heroin is rapidly converted by the body’s metabolic processes), (2) at a time when she had lost the capacity to ‘walk or talk straight’, and (3) despite his admission of awareness that there was a substantial possibility that a further injection in her then drug-saturated state would cause her to ‘fall out’ (in modem vernacular of drag users, that she would die) is fatal to any contention that he did not act recklessly within the meaning of section 125.15 of the Penal Law.” Id., 305.

In this case, we conclude that the circumstances and the conduct of the defendant are more similar to Loft-house than to Palmer or Cruciani. Here, there was evidence that the defendant had been in possession of the fentanyl lollipops and distributed them to others for one week prior to the victim’s death. The defendant himself ingested the lollipops. There was no evidence that the defendant or anyone to whom he had given the medications had an adverse reaction to them. The warning on the label was directed toward children, not an adult such as the victim. The defendant knew the victim to be a person who abused drugs. The victim ingested the medications voluntarily, and the medications were not administered to her by another person. Prior to the group’s going to the basement of the apartment, the defendant had given Methodose to others who had no adverse reaction. Moreover, the evidence at trial concerning the toxic effects and the lethal dosages of Methodose and fentanyl was presented by expert witnesses. Barbieri testified that he relied on Randall C. Baselt, an authoritative source, for the range of concentrations of drugs in the blood that have been reported as lethal. Consequently, we cannot say that the defendant, as a layperson, knew of the toxic effects and the quantities of the subject drugs that would be lethal. Indeed, Barbieri’s testimony indicated that the pharmacological effects of a drug can and do vary from one person to another. We reject, therefore, the state’s argument that the risks associated with the ingestion of Methadose and fentanyl, alone or in combination, are commonly known by laypeople. We do not conclude, therefore, that the defendant’s distribution of illegally obtained prescription medication to the victim, without more, justifies the jury’s conclusion that he created a grave or unjustifiable risk attendant to extreme indifference to human life.

In its brief, the state cites cases concerning convictions of manslaughter in the first degree under circumstances not related to drugs. The facts of those cases demonstrate that the grave risk of death associated with the subject conduct are within the common knowledge of a layperson and that no expert testimony would be necessary to educate the jury. See State v. McCoy, 91 Conn. App. 1, 2, 879 A.2d 534 (firing pistol at victim at close range), cert. denied, 276 Conn. 904, 884 A.2d 1026 (2005); State v. Best, supra, 56 Conn. App. 751 (using fist to pound abdomen of toddler with force sufficient to break fist). Our own research of convictions for manslaughter in the first degree discloses similar conduct that creates an extreme risk of death that is within the common knowledge of a layperson. In State v. McMahon, supra, 257 Conn. 544 (defendant shot high powered rifle without proper sightline or backstop into area known to be frequented by walkers and bicyclists), our Supreme Court catalogued cases involving such conduct: “State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203 (1990) (affirming conviction where defendant caused death of baby by throwing her into bathtub . . .), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992); State v. Pellegrino, 194 Conn. 279, 294-95, 480 A.2d 537 (1984) (affirming conviction under § 53a-55 [a] [3] where defendant and accomplice set business on fire, and accomplice died in fire); State v. Shine, 193 Conn. 632, 643, 479 A.2d 218 (1984) (affirming conviction where intoxicated defendant drove car directly into two pedestrians causing their deaths); State v. Spates, [176 Conn. 227, 237, 405 A.2d 656 (1978)] (affirming conviction under § 53a-55 [a] [3] where defendant, in course of robbing victim, ignored victim’s pleas for medical attention, resulting in victim’s death from heart attack); State v. Johnson, 29 Conn. App. 394, 396, 615 A.2d 512 (1992) (affirming conviction where defendant drove wrong way on highway, colliding with and causing death of victim), appeal dismissed, 227 Conn. 611, 630 A.2d 69 (1993); State v. Hall, 28 Conn. App. 771, 773, 612 A.2d 135, cert. denied, 224 Conn. 904, 615 A.2d 1045 (1992) (affirming conviction where defendant hit victim in head with brick causing his death).” State v. McMahon, supra, 555-56. These are all cases in which it is apparent that death could result from the conduct at issue.

The state also has cited cases involving the illicit use of drugs that it claims support its contention that it is common knowledge that providing medication to the victim would result in a grave risk of death. We disagree that the cases cited by the state support that contention. The issue in State v. Clark, 260 Conn. 813, 801 A.2d 718 (2002) (criminal possession of revolver), was whether the jury could rely on its own knowledge of the effects of marijuana on a person’s ability to observe and recall without evidence of such effects. “[Bjecause it is an illegal substance, it may be that many jurors have no firsthand knowledge regarding the effects of marijuana on one’s ability to perceive and to relate events. At the same time, we cannot blink at the reality that, despite its illegality, because of its widespread use, many people know of the potential effects of marijuana, either through personal experience or through the experience of family members or friends. The ability to draw inferences about the impairing effects of marijuana, like alcohol, however, is based upon common knowledge, experience and common sense, not necessarily on personal experience.” Id., 824. We cannot agree, however, that the potentially toxic effects of Methadose and fentanyl, far more complex matters, is common knowledge; in fact, the state presented expert testimony as to the toxic effects of those medications from at least three witnesses. Furthermore, as noted, the experts testified that the manner in which one person metabolizes a drug is not the same way in which another person may metabolize or react to the drug.

State v. Padua, 273 Conn. 138, 869 A.2d 192 (2005) (risk of injury to child), concerned, in part, whether there was sufficient evidence “to sustain the defendants’ convictions of risk of injury to a child because the state failed to introduce expert testimony to establish that the ingestion of raw marijuana is injurious to a child’s physical health . . . .” Id., 142. Our Supreme Court held that “the Connecticut legislature has made the clear determination that marijuana is a dangerous substance from which children, especially, should be protected. The public is presumed to be aware of that determination. See, e.g., Hebb v. Zoning Board of Appeals, 150 Conn. 539, 542, 192 A.2d 206 (1963) (‘[i]t is a familiar legal maxim that everyone is presumed to know the law’).” State v. Padua, supra, 154—55. Our Supreme Court concluded that “it was reasonable for the jury to infer, on the basis of its own common knowledge and experience, that the ingestion of raw marijuana would likely be harmful to the health of a child. [It] recognizefd] that the precise physiological effects of marijuana and their severity may not be within the common knowledge of the average juror and that expert testimony would be helpful in establishing these effects.” Id., 157. The effects of Methadose and fentanyl use on adults who voluntarily ingest them, even in their therapeutic form, are not a matter of common knowledge among jurors. We therefore cannot impute the specific risk of the illicit use of those medications to the defendant. Our Supreme Court made a similar holding in State v. Smith, 273 Conn. 204, 869 A.2d 171 (2005) (risk of injury to child), with respect to cocaine. While Padua and Smith imputed knowledge to those defendants that marijuana and cocaine were harmful to children, the court acknowledged that expert testimony would be necessary to explain the form and extent of the harm.

For the foregoing reasons, we conclude that there was insufficient evidence that the defendant acted recklessly with extreme indifference to human life, which created a grave risk of death to another person.

B

Having concluded that there was insufficient evidence to convict the defendant of manslaughter in the first degree, we now consider the remedy. The defendant claims that his conviction must be vacated. The state posits that if we conclude that there was insufficient evidence to support the defendant’s conviction of manslaughter in the first degree, we should remand the case to the trial court with direction to modify the judgment to reflect a judgment of conviction of manslaughter in the second degree; see General Statutes § 53a-56 (a) (l); and to resentence the defendant accordingly. We agree with the state.

Our Supreme Court “has modified a judgment of conviction after reversal, if the record establishes that the jury necessarily found, beyond a reasonable doubt, all of the essential elements required to convict the defendant of a lesser included offense.” State v. Greene, 274 Conn. 134, 160, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006). “[I]t is clear that any lesser degree of homicide may be considered by the trier, subject to the requirements of State v. Whistnant, [179 Conn. 576, 585, 427 A.2d 414 (1980)]. ... It has been often reaffirmed that manslaughter in the first and second degrees and criminally negligent homicide are lesser included offenses within the crime of murder.” (Citation omitted; internal quotation marks omitted.) State v. Cartagena, 47 Conn. App. 317, 323, 708 A.2d 964 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).

In this case, the state charged the defendant in separate counts with manslaughter in the first and second degrees. In this case, the principal substantive issue before the jury was the defendant’s mental state at the time he provided the victim with the subject medications. Recklessness, as defined previously, is an element of both §§ 53a-55 (a) (3) and 53a-56 (a) (1). Because we have concluded that there was insufficient evidence that the defendant acted with extreme indifference to human life, he cannot be convicted of manslaughter in the first degree. As outlined previously, however, there was evidence that the defendant was aware of and consciously disregarded the substantial and unjustifiable risk of illegally distributing prescription medication and therefore acted recklessly. See General Statutes § 53a-3 (13). We therefore conclude that the defendant’s conviction of manslaughter in the first degree should be reversed and the case remanded to the trial court with direction to modify the judgment to reflect a conviction of manslaughter in the second degree and to resentence the defendant in accordance with that conviction. See State v. Greene, 274 Conn. 162.

II

The defendant’s second claim is that the court improperly charged the jury on the state’s burden of proof and the presumption of innocence, requiring a new trial on all counts. This claim lacks merit.

The defendant specifically claims that the court improperly instructed the jury: “If you find that the state has failed to prove beyond a reasonable doubt each element of this offense, you shall find the defendant not guilty.” The defendant argues that the court should have instructed the jury in keeping with his request to charge and § 2.51 of J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. 2001), i.e., “if you find that the state has failed to prove beyond a reasonable doubt any one of the elements, you shall then find the defendant not guilty.” The defendant argues that the manner in which the court instructed the jury made it impossible for the jury to find the defendant not guilty of any of the charges against him.

The state has drawn our attention to each of the court’s instructions regarding its burden of proof. At the conclusion of its instruction on the burden of proof, the court stated in part: “The state must prove every element necessary to constitute the crime charged. If one element of the charge is lacking, you must find the defendant not guilty of that crime. . . . The state’s obligation is to prove each and every element of the crime charged beyond a reasonable doubt.” At the beginning of its instruction for each of the offenses with which the defendant was charged, the court instructed: “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt . . . After instructing the jury on the elements of each offense, the court charged: “For you to find the defendant guilty of this charge . . . the state must prove beyond a reasonable doubt each of the elements of each charge.” At the end of its instruction on each of the charged offenses, the court stated to the jury: “Now, if you unanimously find that the state has proved beyond a reasonable doubt each of these elements of the offenses charged, you shall find the defendant guilty of this charge. If you find that the state has failed to prove beyond a reasonable doubt each element of this offense, you shall find the defendant not guilty.” (Emphasis added.)

“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established. . . . When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party .... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007).

On the basis of our review of the court’s entire instruction to the jury, we conclude that the court did not mislead the jury or commit error of a constitutional nature. The difference between the model jury charge urged by the defendant and the instruction given by the court is one without a meaningful distinction. The defendant’s claim, therefore, fails.

The judgment is reversed only as to the conviction of manslaughter in the first degree and the case is remanded with direction to modify the judgment to reflect a conviction of manslaughter in the second degree in violation of § 53a-56 (a) (1) and to resentence the defendant in accordance with that conviction. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       McDonough testified in part: “When I certify a cause of death related to drugs, I personally don’t use the word overdose. That implies that there is a certain level that in everybody is going to be lethal. I prefer to use the word toxicity because it’s often the drug interacting with the brain or the heart at various different levels of concentrations that can cause an individual’s death.
      “For example, for cocaine, some people can use cocaine for years and years and many, many times and have no problem. Other times, people can use the cocaine for the very first time in relatively small amounts. It interacts with their heart and they die. So, that’s why I prefer to use the word a toxic effect as opposed to a pure overdose effect.” (Emphasis added.)

       Methadose is the pharmaceutical name of methadone, a drug commonly used in the treatment of heroin addiction.

       Fentanyl is a quick acting narcotic that primarily is used by cancer patients to reheve pain.

       Finnemore understood this to be an inquiry regarding whether he wanted a pill.

       The following individuals in addition to those named in the text also were present: Shaquita Jones, Nelson Ruiz and Renee Montanez.

       The victim generally did not smoke marijuana, as she preferred cocaine.

       Defense counsel made an oral motion for a judgment of acquittal at the end of the state’s case-in-chief and at the conclusion of evidence. The court denied both motions because the motions concerned issues, particularly credibility, that were to be decided by the jury.

       Count six of the amended long form information alleged manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1). It stated that “[the prosecutor] accuses [the defendant] of the crime of manslaughter in the second degree in violation of Connecticut General Statutes § 53a-56 (a) (1) and alleges that on or about April 13, 2003 at or near 35 Darling Street, Apartment X, Southington, Connecticut, the defendant . . . recklessly caused the death of another person (to wit: Rebecca Calverley).”

       As the court in Wassil stated: “In the absence of such a challenge, we have no occasion to decide whether the evidence was sufficient to demonstrate that, in delivering the narcotics, the defendant had consciously disregarded[ed] a grave risk of death to [the victim] or that he had acted under circumstances evincing an extreme indifference to human life.” (Internal quotation marks omitted.) State v. Wassil, supra, 233 Conn. 192 n.11.

       Our Supreme Court rejected the Wassil defendant’s proximate cause claim. State v. Wassil, supra, 233 Conn. 191-92.

       “No person may be convicted of murder in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are: First, the death of a human; Second, caused by conduct which was imminently dangerous to another person(s); Third, the conduct was that of the defendant(s); Fourth, the conduct evinced a depraved mind in extreme disregard of human life; Fifth, the conduct is not done with the intention of taking the life of or harming any particular individual.
      “Depraved mind—a person evinces a depraved mind when he engages in imminently dangerous conduct with contemptuous and reckless disregard of, and in total indifference to, the life and safety of another.
      “Imminently dangerous conduct—conduct is imminently dangerous where the conduct creates what a reasonable person would realize as an immediate and extremely high degree of risk of death to another person.” (Emphasis in original.) Palmer v. State, supra, 871 P.2d 432-33.

       “Under New York’s statute the significant element is scienter, a showing that defendant was ‘aware of and consciously [disregarded] a substantial and unjustifiable risk’ (Penal Law, § 15.05) . . . .” (Emphasis in original.) People v. Cruciani, supra, 36 N.Y.2d 305.

       See R. Baselt, Disposition of Toxic Drags and Chemicals in Man (7th Ed. 2004). “The purpose of this work is to present in a single convenient source the current essential information on the disposition of the chemicals and drugs most frequently encountered in episodes of human poisoning. The data included relate to the body fluid concentrations of substances in normal or therapeutic situations, concentrations in fluids and tissues in instances of toxicity and the known metabolic fate of these substances in man. ... It is expected that such information will be of particular interest and use to toxicologists, pharmacologists, clinical chemists and clinicians who have need either to conduct an analytical search for these materials in specimens of human origin or to interpret analytical data resulting from such a search.” See http://www.biomedicalpublications.com/dt7.htm (accessed 3/10/08).

       General Statutes? § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . .

       “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 179 Conn. 588.

       In support of his argument, the defendant relies on Green v. Young, 264 Va. 604, 571 S.E.2d 135 (2002). He claims that the language of the trial court in Green is virtually identical to the language used by the trial court here. We disagree. The objectionable language in Green follows: “If you find that the Commonwealth has failed to prove beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty . . . .” Id., 608. The language of the two charges is not similar. The court here instructed the jury that if the state did not prove each element of the offense, the jury was to find the defendant not guilty.


source: Caselaw Access Project

author:
LAVINE, J.
      FLYNN, C. J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHN B. SITARAS
    (AC 27675)
    Flynn, C. J., and DiPentima and Lavine, Js.

      Argued September 19, 2007
    officially released March 25, 2008

      Glenn T. Terk, with whom, on the brief, was Katherine L. Matthews, for the appellant (defendant).

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

LAVINE, J.

The unfortunate facts of this case demonstrate that it is impermissible to interfere with a peace officer performing his or her duties, even if one believes that the officer is mistaken or improperly used a pretext to execute an arrest warrant. See General Statutes (Rev. to 2003) § 53a-167a (a); see also State v. Aloi, 280 Conn. 824, 834, 911 A.2d 1086 (2007) (“§ 53a-167a broadly proscribes conduct that hinders, obstructs or impedes a police officer in the performance of his or her duties irrespective of whether the offending conduct is active or passive”).

The defendant, John B. Sitaras, appeals from the judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of § 53a-167a (a). On appeal, the defendant claims that (1) there was insufficient evidence by which the jury reasonably could have found that he interfered with an officer, (2) the court improperly instructed the jury, and (3) he was denied the right to a fair trial due to prosecutorial impropriety. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts from the evidence presented. On August 26, 2005, Joseph Ficacelli of the East Hartford police department was on routine patrol when he observed a motorist take a shortcut through private property. While checking on the vehicle’s registration, Ficacelli learned that there was an outstanding warrant for the arrest of the owner of the vehicle that had been issued by the Plainville police department. Ficacelli stopped the vehicle, which was owned by the defendant, and identified the defendant’s son as the operator. Ficacelli decided to use a ruse to arrest the defendant and borrowed the son’s cellular telephone to call the defendant. Ficacelli told the defendant that they needed to meet so that Ficacelli could discuss a stolen vehicle report the defendant had filed. Ficacelli and the defendant agreed to meet at the parking lot of Mayberry School. Ficacelli then radioed fellow officer Patrick Sullivan, who was on patrol near the school, and asked him to help take the defendant into custody.

Sullivan, wearing his uniform and operating a marked police vehicle, arrived at the school at approximately 6:20 p.m. Ficacelli had not yet arrived. Sullivan did not know why an arrest warrant had been issued for the defendant or by which jurisdiction. When the defendant saw Sullivan enter the parking lot, he waved to him and engaged Sullivan in cordial conversation. Sullivan asked the defendant if he knew there was an outstanding warrant for his arrest. The defendant responded with astonishment, which Sullivan interpreted as a warning signal. The defendant explained to Sullivan that he had come to the school to talk to Ficacelli about a stolen vehicle report and that there must be some mistake about the warrant. The defendant produced his operator’s license when Sullivan asked for it. As a result of the defendant’s protestations, Sullivan decided to confirm the arrest warrant to ensure that a mistake had not been made. Sullivan asked the defendant to sit in the back of the police vehicle while he radioed for confirmation of the warrant. The defendant refused to get into the vehicle, telling Sullivan that the officer had “no right to put him back there” and that he did not “need to be back there.”

In response, Sullivan initially did not compel the defendant to sit in the vehicle but radioed for confirmation of the warrant while the defendant stood within earshot. When Sullivan received confirmation of the warrant, he asked the defendant to turn around and put his hands behind him. According to Sullivan, the defendant became angry, belligerent and refused to comply. He protested loudly that the police had made a “mistake,” he was “the wrong person,” “there’s no way I should be getting arrested,” and, “I’m not going to do it.”

Sullivan feared for his safety as the defendant, who was larger than Sullivan, became more agitated. Sullivan grabbed the defendant’s arm in an attempt to turn him around and put on the handcuffs. The defendant resisted, tensing his muscles and backing away. He ignored all of Sullivan’s verbal commands. Sullivan then saw Ficacelli enter the parking lot. Assured that help was on the way, Sullivan executed a takedown of the defendant by hooking his leg behind one of the defendant’s and using body leverage to throw the defendant to the ground. The defendant resisted, but Sullivan was able to turn him onto his stomach. The defendant continued to resist until Ficacelli informed him that he would use a chemical spray. The defendant then permitted the officers to handcuff him and take him into custody. He was cooperative thereafter. The defendant was charged with interfering with an officer.

As his defense, the defendant asserted that he never attempted to flee or physically resist arrest. He admitted, however, that he did not enter the police vehicle at Sullivan’s request. The defendant described Sullivan as curt, unreasonable and overzealous. According to the defendant, when Sullivan told him that he was under arrest, he simply, but politely, told Sullivan that there must be some mistake and suggested that they wait for Ficacelli to arrive. When Sullivan saw Ficacelli arrive, Sullivan suddenly and without provocation threw the defendant to the ground. The defendant was under the impression that Sullivan was trying to impress Ficacelli and earn arrest points with the police department. The defendant claimed that if Ficacelli had been forthright with him from the beginning, he would have met the officer at police headquarters to discuss the arrest warrant.

After the jury found the defendant guilty of interfering with an officer, the court sentenced him to one year in prison, execution suspended after thirty days, followed by a year of probation. The court also imposed special conditions requiring the defendant to make a $500 contribution to the Brian Aselton Fund, a $500 contribution to the Sarah McDermott Scholarship Fund, to perform 100 hours of community service and undergo anger management counseling. The defendant timely appealed.

I

The defendant’s first claim is that there was insufficient evidence to support his conviction of interfering with an officer. More specifically, the defendant argues that there was no evidence that he physically prevented Sullivan from arresting him and that verbal statements and nonphysical refusal to comply with an officer’s directive does not constitute a violation of § 53a-167a. We disagree.

A claim of insufficient evidence implicates the constitutional right not to be convicted on inadequate proof. State v. Morgan, 70 Conn. App. 255, 281, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). We review this claim first as it may be dispositive of the appeal; see State v. Padua, 273 Conn. 138, 179, 869 A.2d 192 (2005); because a defendant convicted on insufficient evidence cannot be retried without violating the double jeopardy clause. See Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 808, 911 A.2d 1099 (2007).

The relevant language of § 53a-167a (a) is, “when such person obstructs, resists, hinders or endangers” the officer in the performance of his or her duties. In support of his claim, the defendant relies on language from this court’s decision in State v. Aloi, 86 Conn. App. 363, 373, 861 A.2d 1180 (2004), rev’d in part on other grounds, 280 Conn. 824, 911 A.2d 1086 (2007), namely, “[a] reasonable and natural construction of the terms ‘obstruct,’ ‘resist,’ ‘hinder’ and ‘endanger’ reveals that they do not proscribe being verbally defensive or voicing mere declaratory statements, but proscribe some act that imposes an obstacle that may impede, hinder, prevent or substantially delay the performance of the officer’s duties.”

Although the defendant admitted that he told Sullivan that there must be some mistake concerning the arrest warrant, that he had the wrong man and that he did not obey Sullivan’s order to get into the police vehicle, he vigorously denied that he physically resisted Sullivan’s attempt to arrest him. According to Sullivan, however, the defendant refused to turn around and put his hands behind his back when ordered to do so, and contrary to the defendant’s version of events, the defendant tensed up, pulled away from him and would not put his hands behind his back after Sullivan had executed a takedown. The issue of whether the defendant physically resisted Sullivan’s attempt to arrest him was the principal issue at trial. Indeed, the state prosecuted the defendant on the theory that he physically resisted Sullivan and specifically requested that the court give the standard jury charge; see J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. 2001) § 2.44; concerning resisting arrest by physical force, which is applicable to General Statutes § 53a-23.

When the court charged the jury, it stated, in part: “[TJhere are four words describing the ways interference may be committed. Obstructs means to interpose obstacles or impediments; to hinder, impede or in any manner intrude or prevent. This word and its definition does not necessarily imply the employment of direct force or the exercise of direct means. Resist means to impose by direct, active forcible, quasi-forcible means. Hinder means to make slow or difficult the progress of. It means to hold back, to delay, impede or prevent action. Endanger means to expose to danger or harm. The state need only prove that the defendant committed one of these forms of interference.” (Emphasis added.)

We do not know what facts the jury found because jury interrogatories are not part of our criminal procedure. See, e.g., State v. Lewis, 46 Conn. App. 691, 696, 700 A.2d 722, cert. denied, 243 Conn. 944, 704 A.2d 799 (1997). There is no dispute, however, that the defendant did not get into Sullivan’s vehicle when asked to do so. Sullivan testified that the defendant refused to turn around and put his hands behind his back after he confirmed the outstanding arrest warrant. The defendant disputes that Sullivan asked him to turn around and put his hands behind his back. The jury, however, not the court, is the arbiter of credibility; State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007); and was free to determine whom to believe.

On the basis of our review of the evidence and the court’s charge, we conclude that the jury reasonably could have found that the defendant refused to enter Sullivan’s vehicle when ordered to do so or that the defendant refused to turn around and put his hands behind his back. The jury reasonably could have inferred that either one of the defendant’s refusals to obey Sullivan delayed the officer in the performance of his duties in effecting the defendant’s arrest. We therefore conclude that the defendant was not convicted by means of insufficient proof.

II

The defendant’s second claim is that the court improperly instructed the jury by (1) usurping the jury’s fact-finding province and (2) failing to instruct the jury that mere declaratory statements do not constitute interference or obstruction under § 53a-167a. The defendant failed to preserve this claim at trial and asks that we reverse his conviction pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will review the defendant’s claim because the record is adequate for our review and the claim is of a constitutional nature. See State v. Smith, 94 Conn. App. 188, 198, 891 A.2d 974, cert. denied, 278 Conn. 906, 897 A.2d 100 (2006). We conclude that a constitutional violation clearly did not exist.

It is beyond question that a criminal defendant has a constitutional right to have a jury determine his guilt or innocence. See State v. Gore, 96 Conn. App. 758, 766, 901 A.2d 1251, cert. granted on other grounds, 280 Conn. 937, 910 A.2d 218 (2006). “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established . . . and therefore, we have stated that a charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the juiy the application of those principles to the facts claimed to have been proven.” (Internal quotation marks omitted.) State v. Davis, 261 Conn. 553, 563, 804 A.2d 781 (2002). “When reviewing the challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Benjamin, 86 Conn. App. 344, 353, 861 A.2d 524 (2004). “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case.” (Internal quotation marks omitted.) State v. Davis, supra, 564.

The defendant argues that a central issue in the case was whether he interfered with Sullivan by use of physical force. He claims that the court usurped the jury’s fact-finding function by charging: “Lastly, the fact that the defendant thought that the attempted arrest was wrongful or that the defendant may have thought that the peace officer was acting unlawfully is no defense to the defendant’s use of force, which was unjustified.” (Emphasis added.) This instruction, the defendant argues, posited that he in fact used force and effectively instructed the jury that force had been used.

We agree that the question of whether the defendant used physical force was central to the state’s theory of the case and was contested by the defendant at trial. Throughout her closing argument in chief, the prosecutor acknowledged that there were two versions of the interaction between Sullivan and the defendant. During rebuttal, she argued that it was for the jury to decide whether Sullivan or the defendant was telling the truth about the use of physical force. In his closing argument, defense counsel argued that the prosecutor used the word resist repeatedly. During the colloquy between the prosecutor and the court concerning the jury charge, the prosecutor asked the court to use the standard criminal jury instruction, § 2.44, for resisting arrest by physical force. The court granted the prosecutor’s request and gave that charge. On the basis of our review of the evidence, the arguments of counsel and the court’s entire charge, we conclude that it was not reasonably possible that the court’s instruction as to “the defendant’s use of force” misled the jury by positing that the defendant used force, thereby, removing that factual determination from its deliberations. See State v. Benjamin, supra, 86 Conn. App. 353; see also footnote 10.

We consider the charge at issue in view of the law and the evidence. See State v. Davis, supra, 261 Conn. 564; cf. State v. Williams, 199 Conn. 30, 37-38, 505 A.2d 699 (1986) (court’s improper isolated use of word dissipated by charge read as whole). As we stated in part I, there are certain facts about which there is no dispute. The defendant acknowledged that he did not get into Sullivan’s police vehicle when the officer directed him to do so. The jury also could have found that the defendant did not turn around and place his hands behind his back when Sullivan ordered him to do so. As we stated in part I, the court instructed the jury that there are four words that describe the way one can interfere with an officer: “Obstructs means to interpose obstacles or impediments; to hinder, impede or in any manner intrude or prevent. This word and its definition does not necessarily imply the employment of direct force or the exercise of direct means. . . . Hinder means to make slow or difficult the progress of.” (Emphasis added.) The jury reasonably could have found, on the basis of the facts admitted, that the defendant obstructed or hindered Sullivan in the performance of his duties. The isolated portion of the charge concerns physical resistance, not the other forms of interfering with an officer. Further, the court’s correct instructions on the burden of proof and the elements of the crime, and the exclusive duty of the jury to find facts and evaluate the credibility of witnesses dissipated the isolated reference to the “use of force . . . .” See State v. Williams, supra, 39-40.

“Lastly, the fact that the defendant thought that the attempted arrest was wrongful, or that the peace officer was acting unlawfully, is no defense to the defendant’s use of force, which was unjustified.” (Emphasis added.)

Although we conclude that no constitutional violation occurred in this case, it was not unreasonable for the defendant to have raised the claim. To avoid similar claims in the future, however, pursuant to our supervisory powers set forth in Practice Book § 60-2, we direct our trial courts to refrain from using the offending language in § 2.44 of the standard criminal jury charge that could create an inference that a defendant used force and consequently runs the risk of usurping the fact-finding province of the jury, i.e., “the defendant’s use of force . . . .” See State v. Delvalle, 250 Conn. 466, 475-76, 736 A.2d 125 (1999) (“we . . . direct our trial courts to refrain from using the [jury instruction at issue in that case] in the future”). Henceforth, trial courts should instruct the jury to make the necessary factual determination as to whether the defendant used force to resist arrest, e.g., “If you find that the defendant used physical force to resist arrest, the use of physical force is not justified even though the defendant thought the attempted arrest was wrongful, or that the peace officer was acting unlawfully, if you find that the police officer was identifiable and acting within the scope of his or her duties.”

Ill

The defendant claims that he was denied a fair trial due to prosecutorial impropriety, specifically, that the prosecutor made repeated references to the fact that he is an attorney, dining cross-examination and closing argument and at sentencing. We disagree that the defendant was denied a fair trial on the basis of the prosecutor’s references to the defendant’s occupation.

The defendant claims that the prosecutor’s intent in referring to his occupation was threefold: (1) to demonstrate that the defendant, as an attorney, had a superior knowledge of criminal law and, thus, knowingly violated the law when he interacted with Sullivan, (2) to discredit the defendant, a recent law school graduate, by making it appear as if all lawyers know criminal law and procedure and that he was lying about his ignorance of criminal procedure, and (3) to impress upon the court that as an attorney he should be treated more harshly than a layperson for the crime with which he was charged.

In support of his claim, the defendant relies on the following portion of the prosecutor’s cross-examination of him:

“[The Prosecutor]: . . . I’m going to [go] back to my question which . . . it’s okay, you didn’t really answer it. But you know, don’t you, that under the law, if there is a warrant, the police have to take you into custody?
“[The Defendant]: I know as much about that as any layperson would know because I don’t do criminal law. Yeah, from a layperson’s standpoint, if there’s a warrant out for someone’s arrest, I presume that an officer takes you into custody or maybe they walk in—
“[The Prosecutor]: They didn’t teach you that in law school, sir? They didn’t talk about warrants in law school?
“[The Defendant]: Well, I had criminal law just like you, but I don’t practice criminal law. I practice commercial real estate and stuff like that.
“[The Prosecutor]: You don’t know that if there’s a warrant, the police have to take you into custody?
“[The Defendant]: No, I don’t know that.
“[The Prosecutor]: You honestly don’t know that?
“[The Defendant]: No, I don’t know that.
“[The Prosecutor]: So, you think Ficacelli set you up so that Sullivan could have another arrest under his belt?
“[The Defendant]: I never heard about any point system, arrest point system until today.
“[The Prosecutor]: Well, isn’t that what you just said?
“[The Defendant]: But that’s what I felt when I look back upon the—
“[The Prosecutor]: Well, you may not know a lot about the law, apparently, but that would be just wrong, wouldn’t it?
“[The Defendant]: Well, I don’t know how much I know about the law, but yeah, that would be wrong. My civil rights were actually violated.”

The defendant also relies on portions of the prosecutor’s statements to the court prior to sentencing to the effect that because he is an attorney, he should have known better and conducted himself in a manner consistent with the Rules of Professional Conduct. The defendant did not object to the prosecutor’s cross-examination or to her comments at sentencing. He requests that we review his claims pursuant to State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). See State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004) (no need to engage in Golding review of alleged prosecutorial impropriety).

“[I]n analyzing claims of prosecutorial [impropriety], we will 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 in the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question .... Only if we conclude that prosecutorial [impropriety] has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial. ” (Citation omitted; internal quotation marks omitted.) State v. McCleese, 94 Conn. App. 510, 516, 892 A.2d 343, cert. denied, 278 Conn. 908, 899 A.2d 36 (2006).

“We are mindful throughout this inquiry, however, of the unique responsibilities of the prosecutor in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his [or her] office, [the prosecutor] usually exercises great influence upon jurors. [The prosecutor’s] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. If the accused be guilty, he [or she] should [nonetheless] be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe.” (Internal quotation marks omitted.) State v. Ritrovato, 280 Conn. 36, 61-62, 905 A.2d 1079 (2006).

The defendant claims, in part, that portions of the prosecutor’s cross-examination of him were improper. “Prosecutorial [impropriety] may occur in the course of cross-examination of witnesses . . . and may be so clearly inflammatory as to be incapable of correction by action of the court. ... In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury’s verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal.” (Citation omitted; internal quotation marks omitted.) State v. Williams, supra, 204 Conn. 538-39. In responding to the defendant’s claim that the prosecutor’s cross-examination of him was improper, the state argues that the prosecutor’s cross-examination was probative of the defendant’s knowledge and state of mind as it related to the element of intent. The examination was intended to demonstrate to the jury that the defendant had some special knowledge or education by which to measure his conduct.

We agree with the state that the prosecutor’s cross-examination went to the issue of the defendant’s intent, an essential element of interfering with an officer pursuant to § 53a-167a (a). The prosecutor’s questions therefore did not constitute prosecutorial impropriety. Although the prosecutor’s cross-examination of the defendant, which presumed that the defendant had taken courses in criminal law and police procedures, arguably lacked a solid foundation, that issue is an evidentiary one, not a constitutional one that deprived him of a fair trial.

The defendant also claims that the prosecutor’s impropriety was most egregious during the sentencing phase of trial, and consequently, the court held him to a higher standard of conduct on the basis of his occupation. We agree with the defendant that the prosecutor pushed her argument to the limit when she suggested that the defendant had violated the code of professional responsibility by denying a detailed understanding of criminal law and police procedures. This questionable argument, however, was made to a judge, not to a jury. Moreover, the defendant has not demonstrated that there is anything about his sentence that is fundamentally unfair.

We note that the court did make some comments about the defendant’s claiming not to be well versed in the criminal law and not knowing how to balance his checkbook, but the defendant’s sentence is well within the court’s discretion. It is consistent with due process for a sentencing court to consider “out-of-court information relative to the circumstances of the crime and to the convicted person’s life and circumstance. . . . It is . . . fundamental . . . that a sentencing judge may appropriately conduct an inquiry broad in scope, and largely unlimited either as to the kind of information he may consider or the source from which it may come.” (Citation omitted; internal quotation marks omitted.) State v. Patterson, 236 Conn. 561, 570-71, 674 A.2d 416 (1996).

The court explained that the sentence was given as a deterrent, which is a permissible goal of sentencing; see State v. Hickam, 235 Conn. 614, 629, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996), overruled in part on other grounds by State v. Crawford, 257 Conn. 769, 779-80 & n.7, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002), quoting United States v. Halper, 490 U.S. 435, 448-49, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989); and to send a message that interfering with an officer is not acceptable conduct whether one is an officer of the court or a seventeen year old from a poor neighborhood. The court stated that it understood that the defendant was offended by the fact that the police had used a ruse, but that was not a license to disobey a police officer. Furthermore, the court stated that if the case were referred to it for a recommendation, it would not recommend that the defendant’s license to practice law be suspended. We therefore conclude that the defendant was not denied a fair trial on the basis of the claimed prosecutorial impropriety.

The judgment is affirmed.

In this opinion DiPENTIMA, J., concurred.

FLYNN, C. J.,

dissenting. The majority opinion rests on the notion that where alternative ways of transgressing a statute are possible, a charge that takes away from the jury one of the factual findings necessary for a finding of guilt on one of those alternatives is not harmful where there remains evidence of other alternatives not tainted by error in the charge. I conclude that such an instruction cannot reasonably be considered harmless and, therefore, respectfully dissent.

I agree with the majority that whether the defendant, John B. Sitaras, used physical force in his interaction with the police officer “was central to the state’s theory of the case and was contested by the defendant at trial.” I also would conclude that because that was a jury issue, the court’s instruction to the jury was improper. Specifically, the court instructed the jury that any subjective view that the defendant had that the arresting officer might have been acting unlawfully “[was] no defense to the defendant’s use of force, which was unjustified.” (Emphasis added.) The use of force, whether justified or unjustified, however, was purely a jury issue. Yet, this instruction improperly removed that issue from the jury’s consideration. I disagree with the majority that the effect of this error was harmless.

This is not a case dealing with evidentiary insufficiency as to one of the alternative ways of violating a particular criminal statute as occurred in State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994) (en banc), which recognized that “a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation.” Id., 539. For Chapman to be on similar footing with the present case, the Chapman court would have had to instruct the jury that the defendant did use force on the victim, thus removing that disputed element from the jury’s consideration. Such was not the case, however. In Chapman, the court instructed the jury on two different ways to meet an element of the crime charged, but one of the ways was not factually supported by the evidence. The court did not tell the jury that one of the factual ways to meet that element, in fact, had been established by the state, thus removing it completely from the jury’s consideration, as happened in the present case.

Here, the court’s instruction did not concern a factually insufficient manner of meeting an essential element of the crime charged. Rather, the court’s instruction eliminated the state’s burden of proof on an essential element of the crime charged (as with a mandatory presumption). I would conclude that this amounted to a due process violation; see Sandstrom v. Montana, 442 U.S. 510, 517-24, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); State v. Cerilli, 222 Conn. 556, 583-84, 610 A.2d 1130 (1992); State v. Moore, 23 Conn. App. 479, 481, 581 A.2d 1071, cert. denied, 217 Conn. 802, 583 A.2d 132 (1990); subject to harmless error analysis because the instruction was not the subject of a proper objection during trial. See State v. Faust, 237 Conn. 454, 469, 678 A.2d 910 (1996); State v. Cerilli, supra, 584.

Where there is more than one way to violate a statute, and the jury is told by the court that one of those alternate ways has been established, it is very unlikely that the jury would move on to consider whether any other alternate way also had been established. Having been instructed that the element had been met, there would be no reason for the jury to consider another manner in which the statute could have been violated. Accordingly, the improper instruction could not reasonably be considered harmless, as it took that issue away from the jury’s consideration.

Because of the importance of the court’s improper instruction on this essential element of the crime, which specifically told the jury that the defendant had used unjustified force against the police officer, I would conclude that the error was not harmless in the conviction of the defendant, and, in the interests of justice, I would reverse the judgment and order a new trial.

Accordingly, I respectfully dissent.

       General Statutes (Rev. to 2003) § 53a-167a (a) provides: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer or firefighter in the performance of such peace officer’s or firefighter’s duties.”

       The Plainville arrest warrant stemmed from a check that was returned for insufficient funds. At sentencing in this case, in response to a comment from the court regarding his ability to balance his checkbook, the defendant reluctantly explained that notice of the dishonored check was withheld from him by a member of his family who suffers mental health problems. When the defendant learned of the debt, he paid it immediately. The prosecutor later entered a nolle prosequi with respect to the bad check charge.

       At trial, Ficacelli testified that the ruse was necessary to ensure the safety of all involved and to spare the arrestee the embarrassment and humiliation that could result from being arrested in the presence of family and friends.

       The defendant previously had filed a stolen vehicle report, thus lending credence to Ficacelli’s ruse. See United States v. Alejandro, 368 F.3d 130, 137 (2d Cir.) (search warrant), cert. denied, 543 U.S. 907, 125 S. Ct. 224, 160 L. Ed. 2d 184 (2004), quoting Leahy v. United States, 272 F.2d 487, 490 (9th Cir. 1959) (“[t]here is no constitutional mandate forbidding the use of deception in executing a valid arrest warrant”), cert. dismissed, 364 U.S. 945, 81 S. Ct. 465, 5 L. Ed. 2d 459 (1961).

       Although it appears that the defendant has completed his sentence, his appeal is not moot. The defendant may be subject to collateral legal disabilities imposed as a matter of law because of the conviction. See Barlow v. Lopes, 201 Conn. 103, 112-13, 513 A.2d 132 (1986).

       The state notes that the defendant conceded that he questioned Sullivan about the arrest warrant and argues that verbal and physical conduct may hamper an officer pursuant to State v. Aloi, supra, 280 Conn. 824. We take judicial notice that our Supreme Court’s decision in Aloi was issued approximately one year after trial. We conclude that there was evidence before the jury by which it could have found that the defendant hindered Sullivan in the performance of his duties other than by mere declaratory statements.

       General Statutes (Eev. to 2003) § 53a-23 provides: “A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal.”

       Because we resolve the defendant’s claim on the basis of the undisputed evidence as to his nonverbal behavior, we need not reach the second part of his claim.

       Pursuant to Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The court’s entire instruction on General Statutes § 53a-167a (a) was as follows: “Now, the specific charge is interfering with a police officer in violation of Connecticut General Statutes § 53a-167a. The defendant is charged with interfering with an officer in violation of § 53a-167a of the Connecticut General Statutes or Penal Code, specifically, East Hartford Officer Patrick Sullivan. Section 53a-167a of the Connecticut General Statutes provides as follows: ‘A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer in the performance of his duties.’
      “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: one, that the defendant obstructed, resisted, hindered or endangered a peace officer; two, that the conduct of the defendant occurred while the peace officer was in the performance of his duties; and, three, that the defendant intended to obstruct, resist, hinder or endanger a police officer or peace officer while the officer was in the performance of his duties.
      “A peace officer as defined by our law means a member of an organized local police department. If you find that the officer involved was not a peace officer, then you will find the defendant not guilty and disregard the rest of the court’s charge. If you find that the officer, Officer Sullivan, was a peace officer, you will consider the elements of the crime.
      “With respect to the first element, there are four words describing the ways interference may be committed. Obstructs means to interpose obstacles or impediments; to hinder, impede or in any manner intrude or prevent. This word and its definition does not necessarily imply the employment of direct force or the exercise of direct means. Resist means to impose by direct, active forcible, quasi-forcible means. Hinder means to make slow or difficult the progress of. It means to hold back, to delay, impede or prevent action. Endanger means to expose to danger or harm. The state need only prove that the defendant committed one of these forms of interference.
      “Intent relates to the condition of mind of the person who commits the act; his purpose in doing it. As defined by our statute, a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such a result or to engage in such conduct. What a person’s purpose, intention or knowledge has been is usually a matter to be determined by inference. No person is able to testify that he looked into another person’s mind and saw therein a certain purpose or intention. The only way in which a jury can ordinarily determine what a person’s purpose, intention or knowledge was, at any given time, aside from that person’s own statements or testimony, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct, and from that infer what his purpose, intention or knowledge was.
      “To draw such an inference is not only the privilege but also the proper function of a jury. You may draw reasonable inferences from the facts that you find proven. The inferences that you draw from such facts must be reasonable and logical and not the result of speculation or conjecture. Where a group of facts as circumstantial evidence are relied upon for proof of an element of a crime, the inferences must not only be reasonable and logical, but the cumulative impact of the evidence must be such as to convince you that the element has been proven beyond a reasonable doubt.
      “Now, if you find that the state has proven beyond a reasonable doubt each of the elements of the crime of interfering with an officer, as I’ve just defined that crime for you, then you shall find the defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one of the elements, you shall then find the defendant not guilty.
      “The court would instruct you that our law does not permit a person to use physical force to resist being arrested by a reasonably identifiable police officer. It is necessary that the person being arrested either knew or should have known that the other person was a peace officer. The standard that you are to apply as jurors is whether a reasonable person under the same circumstances as a defendant should have identified the other person as a peace officer.
      “In ruling on this standard, such facts as whether the other person wore a uniform, whether he identified himself or showed his badge or other identification, or the manner in which he acted and conducted himself, are all relevant to your decision of whether that person was reasonably identifiable as a peace officer. . . .
      “So, let me just go back. Our law does not permit a person to use physical force to resist being arrested by a reasonably identifiable police officer. And then I gave you the standard [which] is whether the person being arrested either knew or should have known the other person was a peace officer. And I said further that the standard that you are to apply is whether a reasonable person under the same circumstances as the defendant should have identified the other person as a peace officer. And you would take into consideration whether the person had on a uniform, showed a badge or other identification, or the manner in which he acted and conducted himself. Those are all relevant.
      “Lastly, the fact that the defendant thought that the attempted arrest was wrongful or that the defendant may have thought that the peace officer was acting unlawfully is no defense to the defendant’s use of force, which was unjustified.”

       The standard criminal charge on resisting arrest by physical force, as set forth in J. Pellegrino, supra, § 2.44 provides: “Our law does not permit a person to use physical force to resist being arrested by a reasonably identifiable peace officer. It is necessary that the person being arrested either knew or should have known that the other person was a peace officer. The standard that you are to apply as jurors is whether a reasonable person under the same circumstances should have identified the other person as a peace officer. In ruling on this standard, such facts as whether the other person wore a uniform, whether he identified himself or showed his badge or other identification, or the manner in which he acted and conducted himself, are all relevant to your decision of whether that person was reasonably identifiable as a peace officer. If you so find, it is irrelevant whether the peace officer was officially on duty at the time of the attempted arrest, as long as he was identifiable as a peace officer.

       In his brief, the defendant used the term “prosecutorial misconduct.” In State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007), our Supreme Court adopted the term “prosecutorial impropriety” when referring to allegedly improper statements made by a prosecutor at trial.

       The defendant failed to identify the language in the prosecutor’s closing argument that he claims was improper or to brief his argument in that regard. We therefore decline to review this claimed prosecutorial impropriety.

      The defendant excerpted the following portions of the prosecutor’s comments for our review: “Okay, Your Honor. Well, Your Honor, I know we just had the trial and everything. . . . The state is going to recommend that [the defendant] receive a sentence of one year, suspended after a period of incarceration, three years of probation with conditions. I’ll elaborate on [that] later and a $1000 fine plus costs, Your Honor. And I know [defense counsel] is going to say it’s harsh, Your Honor, so I’ll give my reasons.
      “As you know, Your Honor, [the defendant] is an attorney. I pulled the attorney’s oath out of the Rules of Professional Conduct, which, Your Honor, I’m sure, is familiar with, which emphasizes that lawyers may not do anything dishonest, especially nothing dishonest in court-—also, cannot maintain any cause of action that’s false or unlawful. And I would submit, Your Honor, it took the jury seventeen minutes to decide the truth lay with the police and not with [the defendant]. And I would submit that [the defendant] testified untruthfully in an effort to secure an acquittal and did so, too, Your Honor, with the intent of then, if it worked, of filing a false lawsuit against the East Hartford police department.
      “I’ll point out, too, Your Honor, that the crime he has been convicted of—I mean, I’m not going to argue that anytime a lawyer is convicted of a crime, because they’re a lawyer they should be treated more harshly than someone who’s not. But this particular crime, being served with a warrant issued by the court, kind of goes to the heart of the court system. I mean, if the police couldn’t serve warrants issued by the court, Your Honor, our system would break down. So, you know, this isn’t a disorderly conduct with his wife or a breach of peace at tailgates or something like that. This is something that goes to the heart of the court process. And to me, for an officer of the court to refuse to submit to a warrant issued by the court is especially egregious.
      “And I also submit that [the defendant]—that he was untruthful in his testimony, Your Honor. Frankly, I think that if it were a crime in Connecticut to knowingly have the first name of John, he would have said he didn’t know what his first name was. He did everything he could, including denying rudimentary knowledge of the law, to try to get himself off the hook.
      * ** *
      “So, I find—I believe—or I feel that his entire course of conduct, starting with the initial incident through the trial, was directed toward subverting, thwarting and perverting the criminal justice system. I really do, and for an officer of the court to do that, I find to be egregious.
      “Like I said, I think—I believe he has violated a couple of different provisions of rule 8.4 of the [Rules of Professional Conduct]: committed an act that reflects adversely on his honesty-trustworthiness or fitness as a lawyer, engaged in conduct involving dishonesty, fraud, deceit or misrepresentation and conduct that’s prejudicial to the administration of justice. I mean, I realize we haven’t charged him with perjury, but I think, Your Honor, as part of the sentencing, the jury, by their verdict, found that he wasn’t telling the truth, and I thought it was pretty obvious, actually.”

       The court commented in part at sentencing as follows: “[T]oo often, the public looks at what happens and makes a decision about what they feel about the criminal justice system based on what they see happen to people like [the defendant], and I’m mindful of that. And I don’t want citizens to set foot inside this courtroom thinking that there’s a double standard. There’s law for the poor and law for the nonpoor. There’s law for the academically gifted and a different law for those who are less fortunate and who couldn’t finish high school. The law is the same. When you see a blue uniform, follow directions. Take it to court. Don’t try to settle it on the street.”