text:
    STATE OF CONNECTICUT v. JONATHAN HENRY
    (13668)
    Dupont, C. X, and Foti and Landau, Js.
    Argued February 23
    decision released April 23, 1996

      Howard A. Ehring, assistant public defender, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Bruce Hudock, senior assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102. The defendant claims that the trial court improperly admitted evidence of his prior acts of misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Cindy Askew, a nineteen year old female, lived in a two-story row house located in the Southfield Village housing project in Stamford, along with her mother, grandmother and two younger brothers. The area is highly populated. The victim’s house is an end unit and the victim had her own bedroom on the second floor. The room had one window, which had a broken lock. The window was recessed in the wall, forming a sill. The victim’s bed was located against the wall with the foot of the bed in front of the window. Below and to the left of the window on the outside was a small awning that covered the front entrance of the house. A forty-three inch high fence extended out from the house next to the front door. At night, the area is brightly lit. A high intensity sodium light is affixed to the outside of the victim’s house four feet from her bedroom window. Two additional high intensity lights are located about forty-seven feet from the bedroom window on a lamp post.

At approximately 2:30 a.m. on January 12, 1992, the victim prepared for bed by turning off her bedroom light, locking her door and pulling the window shade. Sometime prior to 4:50 a.m., the sound of the window shade scraping against the wall awoke the victim. She rolled onto her back, opened her eyes and observed a man in her window, kneeling, with one leg on the window sill and the other near the victim’s bed. The window shade was on top of his head.

The victim screamed, got out of bed, unlocked the bedroom door and ran to her mother’s bedroom. She called the police from her mother’s room. The police arrived at 4:50 a.m. The intruder was described as a black male with dark skin and short hair on his head and face. He appeared to be between twenty-five and thirty-five years of age, and was wearing a dark jacket with a light-colored collar, a white scarf and tan pants. The police were unable to locate anyone fitting that description in the immediate area. The intruder gained entrance to the victim’s bedroom by climbing onto the fence and then onto the awning.

Approximately two or three weeks after the incident, the victim saw the intruder standing near a playground in Southfield Village. A few weeks later, she saw him at a bus stop in Southfield Village. The police were unable to locate the intruder on either occasion. On May 5,1992, the victim selected the defendant’s picture from a photographic array and identified him as the man who had climbed in her window on January 12, 1992. The victim did not know the defendant but she did know his sisters and mother. The victim also made a positive in-court identification.

The defendant claims that the trial court improperly admitted evidence of his prior misconduct. During the state’s case-in-chief, the prosecuting attorney sought to introduce evidence of the factual basis that led to the defendant’s conviction on a charge of sexual assault in 1982, arguing that the evidence was admissible to show identity, intent and method of operation. On March 9, 1993, the trial court conducted a hearing outside the presence of the jury.

In an offer of proof, the state presented the testimony of B, the victim of the prior sexual assault, who testified that on March 6, 1982, she was nineteen years old and lived in Southfield Village. B’s house was a two-story end unit, and B’s bedroom was on the second floor. She lived in the house with her mother, father and three sisters.

On the night of March 5,1982, B went to bed between 11:30 p.m. and midnight. She was alone in her bedroom, and her mother and younger sister were also in the house. B had two windows in her bedroom and left one open one inch. This window had a roof beneath it, and below that roof was an awning that covered an entrance to the residence. She also left the window shade up so that air could get into her room. Light came into the room from a light post outside the window. Numerous other lights illuminated the area around her house.

Sometime prior to 2:20 a.m. on March 6, B woke up and felt someone on top of her. She had been sleeping on her stomach, and the intruder turned her over onto her back. B started to scream, and the intruder told her to shut up or he would kill her. The intruder put his hands around her neck and choked her. He then used one hand to rip off her underwear and stuffed a sock in her mouth. The intruder pushed B’s legs apart with his legs and raped her. He choked her throughout the rape until she almost passed out.

When the intruder had finished raping B, he told her to stay in bed or he would kill her. He then climbed out the window. B called the police at 2:20 a.m. She told them that the intruder was a black male, slightly heavier than average, brown-skinned, with a short beard that looked like it was just growing in, and teeth missing from the front of his mouth.

B believed that the man who raped her was the defendant, Jonathan Henry, but she was too afraid to tell this to the police. B had previously seen the defendant around her neighborhood and knew his sisters, but she was not acquainted with him. Two days after the rape, B saw the defendant standing in front of a building in Southfield Village and identified him as the man who had attacked her. B subsequently selected the defendant’s photograph from an array of photographs and later made an in-court identification of the defendant as the man who had raped her on March 6, 1982.

Following the state’s offer of proof and the arguments of counsel, the court indicated that it would reserve decision until the following day but advised that if it decided to permit the state to introduce the prior crime evidence, it would limit B’s testimony regarding the sexual assault in response to the defendant’s claim that the circumstances of the crime were inflammatory. The court stated: “If I were to allow this evidence in, I’d find the following circumstances as far as similarities go, because the question might come in, why would someone enter a building in a highly populated area, well lit, comer buildings on streets in Southfield Village at this hour in the night through the second floor in a building that is occupied?”

The trial court then stated what it considered to be the similarities in that “(1) both homes were in Southfield Village and were occupied at the time of the break-in; (2) in both cases, entiy was made during the early morning hours; (3) both houses were end units in buildings located on public streets; (4) in each case, entry and exit were made through a second-story, sliding window of a two-story house connected to other houses; (5) the area around each house was very well illuminated; (6) the intruder had to be agile enough to climb onto an awning from a short brick wall in B’s case, and from a fence post in the present case, in order to gain access to the window; (7) the area each house was in was highly populated; (8) both victims gave firm identifications that were particularized with regard to the intruder’s facial features; (9) in each case, the victim later spotted the intruder lurking in Southfield Village; and (10) both victims were nineteen-year-old black females.”

The trial court stated: “So there are, despite the defendant’s contention to the court, extraordinary and striking similarities of a bold entry in a public, [illuminated] area of a corner building on a second floor in early morning hours, into a room, occupied by a young female, by someone agile enough to climb onto the roof and get into the building. . . . [M]y present thinking is these circumstances are very similar, strikingly so. So I would not call this a run of the mill-type entry in the night season — usually those entries are made in covert situations, in dark places that are not illuminated, when one is sure that the building may not be occupied or the residents may be asleep. In each case, the victim was asleep, and was awakened by the intruder. So there are striking similarities.”

The court noted that, in regard to identity, the circumstances were “strikingly similar” and that “the person who committed the previous crime in a rather extraordinary manner and was identified by that previous victim, may very well be the person who committed the present crime in the same extraordinary manner. At least it’s something for the jury to give consideration to.” Regarding intent, the court stated: “[T]he state must prove that the defendant had some intent. And evidence of having committed a sexual assault without all of the surrounding circumstances would be probative as to why a person would in the early morning hours enter into a bedroom of a young female in a relatively illuminated place in this manner, other than to commit burglary.”

On the following day, the court ruled: “After considering this matter overnight, I have determined that the similarities between the incident described by [B] and the incident and the description in the present case by the present victim are so unique, as to warrant a reasonable inference that the person who performed one [misdeed] also did the other, if the jury [decides] to give credit to the testimony of [B]. . . . In balancing the issue as to the probative value of this matter, together with the prejudicial effect of the introduction of the evidence, I’m going to limit the testimony of [B] to those aspects of her experience that would weigh on the two issues that the state claims that this testimony’s being introduced for. That is for identity and for intent. . . . Insofar as the state claims that the intent which the evidence is being introduced for would be intent to commit a sexual assault, I’m going to limit [B’s] testimony, not to the horrendous experience she underwent with regard to the actual actions, but to a statement that she was threatened and assaulted sexually, period, without describing the course of conduct that occurred. ... I believe that that will remove some of the prejudicial aspects of the introduction of the earlier evidence. Also, there is a time gap of almost ten years. Now, the court is cognizant, but the jury will not be made aware of the fact that most of that time was accounted for by the defendant being incarcerated for various other crimes; not only the [B] crime, but for other offenses. The jury will not, unless on some other basis, hear about these previous convictions. And I will instruct the jury that [the] passage of ten years might very well affect [B’s] ability to adequately recollect the items that she testified to. I think not allowing the jury to be informed [as] to the fact that the time gap was attributable primarily to the defendant’s incarceration will remove some of that prejudicial aspect.

“Finally, I will give a specific charge, both at the time of the introduction of [B’s] testimony, and at the time of the final charge, that will limit their consideration of that testimony, solely for the purposes for which it was introduced. So, I think, under these circumstances, the probative value being offered, especially with regard to the establishment of identity, limited as I have indicated I will limit it, and surrounded by the specific instructions, [out]weighs the prejudicial value, obviously, that any of the introduction of testimony would have.”

Prior to the introduction of B’s testimony, the trial court instructed the jurors that her testimony was not to be considered by them for the purpose of showing that the defendant is of bad character, or has a propensity or disposition to commit crimes of any sort. The court concluded: “[T]he state has offered this and is offering this testimony, and you may consider it only insofar as it might assist you in determining one or more of the elements of a crime. And specifically the state claims, and it is only the claim of the state, that [B’s] testimony might be of assistance to you in determining the identity of the assailant in the present case, or the intent of the assailant in the present case, if you find it was of the alleged burglar in the present case, or the intent of the alleged burglar in the present case, if you find there was such a person.”

Following B’s testimony, the trial court instructed the jury that her testimony “has not been admitted, nor should you consider it, for the purpose of showing that the defendant in this case is a man of bad character, or a man who has a propensity or disposition to commit the crime of burglary. It is neither a rule of law, nor of logic or of common sense, to say that if a man had once committed a crime and you come to that conclusion, or is a man of bad character, and you come to that conclusion, that he must be guilty of any crime that anyone charges against him at [a] subsequent date. The evidence presented by [B] is only to be utilized by you, in the event you give weight and credit to that evidence, as to whether or not you might logically infer facts tending to prove the identity of the alleged assailant or the identity of the alleged burglar, or the purpose of the alleged entry in the case involving [the victim here]. And I remind you again, that the incident described by [B] occurred over ten years ago. And that quite often the passage of time does affect one’s ability to recall events accurately.”

The defendant claims that the trial court improperly admitted the evidence of the sexual assault of B either as to identity or as to intent.

“ ‘As a general proposition, evidence of guilt of other crimes, because of its prejudicial nature is inadmissible to prove that a defendant is guilty of the crimes with which he is charged.’ ” State v. Baldwin, 224 Conn. 347, 354, 618 A.2d 513 (1993). Evidence of a defendant’s prior misconduct is admissible provided that it is relevant and material to intent, identity, malice, motive, a system of criminal activity or the elements of a crime and, also, that the probative value of that evidence outweighs its prejudicial effect. State v. Cooper, 227 Conn. 417, 424-25, 630 A.2d 1043 (1993). The determination of whether the probative value of evidence outweighs its prejudicial effect is made in the exercise of judicial discretion, and will not be disturbed on appeal absent clear abuse of discretion, with every reasonable presumption given in favor of the trial court’s ruling. State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993).

The high degree of similarity required for admissibility on the issue of identity is not required for misconduct evidence to be admissible on the issue of intent. State v. Mooney, 218 Conn. 85, 132, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). On the issue of identity, however, use of evidence of other crimes or misconduct depends on whether the methods used are sufficiently unique to warrant a reasonable inference that the person who did one also did the other. State v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982). Once this threshold has been satisfied, the trial court must then balance the probative value against the prejudicial effect of the evidence and, before admitting it, must find that the former outweighs the latter. State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985). More than a high degree of similarity is required; the common features must be sufficiently unique. State v. Murrell, 7 Conn. App. 75, 81, 507 A.2d 1033 (1986). The similarities must be viewed as a whole. “It is the distinctive combination of circumstances and actions which forms the ‘signature’ or modus operandi of the crime . . . and it is this ‘criminal logo’ which justifies the inference that the person who committed one offense committed the other.” (Citations omitted.) State v. Carsetti, 12 Conn. App. 375, 382, 570 A.2d 1095, cert. denied, 205 Conn. 809, 532 A.2d 77 (1987).

Our review of the record leads us to conclude that the trial court properly determined that evidence of the sexual assault of B was relevant and material to the issue of identity. While no one circumstance is sufficiently unique to warrant an inference, we nevertheless recognize, as did the trial court, the distinctive combination of circumstances that may justify such an inference by the trier of fact. Both victims were nineteen year old black females who knew the defendant’s sisters, and both were able to identify the intruder as a black male with short hair on his head and face. In addition, as recognized by the court, there were similarities regarding the houses, the time of day, method of entry, lighting conditions, location of each incident, and subsequent observations of the intruder by both victims in Southfield Village. The trial court also recognized that the nature of both crimes demonstrated a certain boldness or bravado that was highly unusual. The intruder made no effort to disguise his face and had to be agile to enter these occupied end units connected to other houses in a highly populated and very well illuminated area. He subsequently appeared publicly in the same neighborhood. The trial court properly determined that the similarities between the two crimes were so distinctive as to warrant an inference that was relevant and material to the issue of identity.

In balancing the probative value of the evidence against its prejudicial tendency, the trial court considered the probability and degree to which the jury might be inflamed by the evidence, and ruled that B’s testimony concerning the assault would be limited to the fact that the defendant had threatened and sexually assaulted her, without any additional details. The court also ruled that the jury would not be informed that the defendant had been convicted of and incarcerated for other crimes. The court also ruled that it would instruct the juiy that the passage of ten years may have affected B’s ability accurately to recollect the sexual assault, and that it would supply limiting instructions regarding B’s testimony. We cannot find an abuse of discretion in view of the careful consideration by the court in its balancing process and its efforts to reduce, as much as possible, the prejudicial effect of that evidence.

We conclude that the trial court acted properly and did not abuse its discretion in determining that the evidence was relevant and material and that the probative value of the witness’ testimony outweighed any potential prejudicial effect on the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       We protect the identity of the victim, as did the trial court.

       Having so concluded, we find it unnecessary to review the court’s determination that evidence of the sexual assault of B was relevant and material to the issue of intent.

       The fact of the defendant’s arrest and subsequent conviction for the sexual assault of B was also not disclosed to the jury.

       The defendant does not raise remoteness as an issue of relevancy; he concedes that, he was incarcerated during most of those ten years.

       The court, instructed the jury, before and after B’s testimony and again in the final charge, that this testimony could not be considered for the purpose of showing that the defendant was a person of bad character or had a propensity to commit crimes. In the final charge the court repeatedly instructed the jury that B’s testimony had been admitted for the limited purpose of assisting it on the issues of identity and intent and that it was the jury’s function to determine B’s credibility and what weight, if any, to give her testimony. The trial court further instructed: “So the evidence of a prior illegal act may be used by you in your deliberations only if you find that that evidence is believable, and only if it tends to support logically and rationally an inference on the issues of intent and identification. If you do not find [B’s] evidence believable, or if you do not find that it logically and rationally supports an inference on the issues of intent and identification, then you must disregard that testimony completely.
      “So in the event there was any misunderstanding about what I said on the drawing of inferences, I tell you now that just because you find [B’s] testimony believable and credible, it does not necessarily require that you would draw any inference with regard to the situation involving the present crime alleged on behalf of [this victim]. You may draw that inference if you find that you can draw such an inference logically and credibly, but you are not mandated to draw any such inference.”


source: Caselaw Access Project

author: O’CONNELL, J. FOTI, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. EUGENE WILLIAMS
    (14451)
    O’Connell, Foti and Hennessy, Js.

      Argued January 24
    officially released April 30, 1996

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, following a jury trial, of three counts of sale of narcotics in violation of General Statutes § 21a-277 (a). The defendant’s sole claim on appeal is that prosecutorial misconduct deprived him of a fair trial. We reverse the judgment of conviction and order a new trial.

The jury could reasonably have found the following facts. On February 23, 1995, Sergeant Dennis Coyle of the statewide narcotics task force, in conjunction with law enforcement officers from the Waterbury police department and the Federal Bureau of Investigation (FBI), conducted an undercover operation in the north end of Waterbury in which police officers, posing as buyers, purchased narcotics from street dealers. The operation targeted several areas known for heavy drug traffic.

During the late afternoon, Detective Nicholas DeMat-teis of the Waterbury police department and FBI Agent William Reiner, Jr., were in an undercover vehicle in the vicinity of Hawkins and Adams Streets. Both officers observed what they characterized as drug related activity. Their attention was specifically drawn to a black male of average build, wearing a striped jacket with a blue hooded sweatshirt. Because DeMatteis believed that this man was conducting a drug transaction, he directed statewide narcotics task force agents John Cole, Laura Wigglesworth, and Thomas Bennett to make purchases from any persons selling drugs in that area.

Cole drove down Hawkins Street and spotted the same individual standing on the sidewalk with several other men. The defendant approached Cole’s vehicle. Cole asked him, “Who’s got those twenties,” referring to $20 bags of crack cocaine. The defendant handed Cole two small green plastic bags containing a white rock-like substance that Cole recognized as crack cocaine. Cole gave the defendant $40 and drove off. Wigglesworth and Bennett then drove to the same location, where the defendant approached their car and handed each officer one bag of the same substance. Following these transactions, DeMatteis and Reiner drove down Hawkins Street to get a closer look at the defendant.

Thereafter, all of the participating officers met with Coyle a few blocks away. Cole, Wigglesworth and Bennett each turned over the green plastic bags to Coyle, who secured them as evidence and sent them to the state toxicology laboratory. Analysis revealed that each bag contained nonsalt cocaine. After a jury trial, the defendant was convicted of three counts of sale of narcotics and sentenced to concurrent fifteen year prison terms on each count.

The defendant claims that misconduct by the assistant state’s attorney prosecuting the case deprived him of a fair trial in violation of the due process clause of the fourteenth amendment to the United States constitution. We agree. The cumulative pattern of prosecu-torial misconduct, frequent and severe, falls into six categories of proscribed behavior: (1) expressing opinions as to the credibility of witnesses; (2) arguing to the jury that in order to acquit the defendant it must necessarily find that the officers testifying for the state committed perjury; (3) testifying as an expert witness; (4) misallocating the burden of proof; (5) appealing to the emotions, passions, and prejudices of the jurors; and (6) deliberately violating the rulings on a motion in limine.

I

A prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of his witnesses. United States v. Modica, 663 F.2d 1173, 1178-79 (2d Cir. 1981); United States v. Drummond, 481 F.2d 62, 63-64 (2d Cir. 1973); State v. Williams, 204 Conn. 523, 541-44, 529 A.2d 653 (1987). Similarly, counsel may not submit to a jury that a witness has testified truthfully. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). A prosecutor’s voucher for the credibility of his witnesses is dangerous primarily because “the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).

The defendant complains of repeated instances in which the prosecutor, despite several defense objections and subsequent admonishments from the trial court, vouched for the credibility of her witnesses: “I would submit to you [the jury] that all of these officers are extremely honest”; “I would submit to you that there’s no evidence that they testified] dishonestly”; “Detective DeMatteis was very honest with you”; “[the officers] all told you honestly what they saw.” The prosecutor also told the jury that the state’s attorney’s office would not “stand by” and let a state’s witness testify falsely as to the defendant’s identity.

The state argues that the defendant induced the collective responses from the prosecutor when he first stated that DeMatteis had a motive to lie and called him a “bald-faced liar.” The response to this comment, however, should have been limited to DeMatteis. The prosecutor improperly expressed her opinions as to the credibility of all the officers in numerous other instances of vouching. By personally vouching for the integrity of each of her identification witnesses, the prosecutor improperly put the weight of her office into the balance against the defendant.

II

Prosecutors have been admonished to avoid statements to the effect that, if the defendant is innocent, government agents must be lying. United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987); People v. Yant, 75 App. Div. 2d 653, 654, 427 N.Y.S.2d 270 (1980) (holding prosecutor improperly argued that to acquit defendant jury would have to find that officers testifying for state had committed perjury).

The defendant cites several comments in which the prosecutor argued that, in order to acquit the defendant, the jury must necessarily believe that her witnesses were perjuring themselves: “And think about the witnesses you have to compare. You have six officers, six officers who don’t have an interest in the case, six officers who don’t have this type of a record.” “Is it reasonable that six officers [would] swear under oath they know absolutely that [this] is the man, if they weren’t absolutely certain? Absolutely not.” “I submit to you that in order to believe the defendant’s version, what he’s asking you to do is believe that these officers, six officers, would come in and for no reason whatsoever lie and perjure themselves and subject themselves to all types of penalties.”

The jury was not required to find that the officers intentionally lied in order to acquit the defendant, nor was it required to believe the defendant’s testimony in order to doubt the accuracy of the state’s identification witnesses. Thus, the prosecutor improperly suggested that a finding for the defendant’s version of the facts was tantamount to a finding that the police officers had committed perjury.

Ill

A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. State v. Binet, 192 Conn. 618, 631, 473 A.2d 1200 (1984). “[A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a witness.” ABA Model Code of Professional Responsibility DR 7-106 (C) (3) (1980). Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument. State v. Williams, supra, 204 Conn. 544.

At trial, the defendant asked why the outsides of the plastic bags bought by undercover officers had not been tested for fingerprints. The state did not introduce an expert to testify that testing the bags would have been impossible. Instead, the prosecutor substituted her opinion as to the feasibility of such testing for that of an expert witness: “Well, now, the drugs [in the bag] have already been tested, so how many people do you think have handled this one little envelope. I can tell you a lot of people have handled it. You think we’re going to get fingerprints on this two weeks ago when the defendant just decided to give the name [Robert Arline as the man who sold the drugs].” The prosecutor improperly testified as to the feasibility of fingerprint testing instead of presenting a witness to testify that the manner in which the police handled the plastic bags would have rendered fingerprint testing impossible or inconclusive.

IV

It is axiomatic that the state must prove every fact necessary to constitute the crime with which a defendant is charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Once an alibi defense is raised in Connecticut, the state bears the burden of disproving it. State v. Bryant, 202 Conn. 676, 703, 523 A.2d 451 (1987).

The defendant raised an alibi defense at trial and also argued that Robert Arline, a known drug dealer, was the man in the surveillance photographs taken by the undercover officers. The defendant presented witnesses to corroborate his identification of Arline. In so doing, the defendant showed the surveillance photographs, provided to him by the state, to the testifying witnesses.

Despite the defendant’s objections that he did not have the burden of proving his alibi defense and the trial court’s rulings that the state was misrepresenting its burden of proof to the jury, the prosecutor repeatedly maintained that the defendant purposefully and selectively showed unclear surveillance photographs to the jury because he had no better evidence in support of his alibi and stated: “I’m going to submit to you that the reason they chose to submit the [photographs] they did is because they’re the ones that are the most difficult to really see . . . .” The prosecutor stated further: “I’m going to submit to you . . . that counsel is really stretching here, and the reason he’s stretching is because he doesn’t really have anything else to go with . . . .” She also stated that the defendant has failed to present “any evidence to support that he was anywhere else.” The prosecutor improperly attempted to distort the state’s burden of proof and to allocate to the defendant the burden to disprove his alibi.

V

A prosecutor may not appeal to the emotions, passions, and prejudices of the jurors. United States v. Modica, supra, 663 F.2d 1181; State v. Couture, 194 Conn. 530, 564-65, 482 A.2d 300 (1984). Such an appeal should be avoided because it “invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” State v. Williams, supra, 204 Conn. 546. Similarly, a prosecutor should not inject extraneous matters into the case that divert the jury from its duty to decide the case solely on the evidence. Id., 547; 1 A.B.A., Standards for Criminal Justice (2d Ed. 1980) c. 3, standard 3-5.8 (d).

The defendant complains of a series of comments in which the prosecutor argued that the officers risked their personal safety to secure the defendant’s arrest: “You heard that [the officers] were putting their lives on the line. I think as just members of society, I think your common sense would tell you that they’re putting their lives on the line.” Undaunted by defense objection and the trial court’s ruling that there was no evidence in the record to support a finding that the officers were in any danger, the prosecutor nonetheless immediately repeated the remarks: “You heard their safety was always a concern . . . this isn’t, again, fun and games. This is real life, ladies and gentlemen, real life.”

By diverting the jurors’ attention to matters that were irrelevant and to those not supported by the evidence, the prosecutor improperly asked the jurors to determine the defendant’s guilt with the emotional predicate that they were “just” and good members of society for whom the officers were “putting their lives on the line.”

VI

Pursuant to a motion in limine, the trial court specifically ruled that state’s witnesses were precluded from (1) referring to previous investigations of the defendant, and (2) referring to how they knew the defendant.

The defendant asserts that the prosecutor repeatedly and flagrantly violated the motion in limine orders. In perhaps the most conspicuous violation, the prosecutor asked DeMatteis how many times he had previously dealt with the defendant. Additionally, in her summation, the prosecutor argued: “You heard from Detective DeMatteis that he knows this individual and you heard that he knows him from his work. Ladies and gentlemen, where does he work? He works for the Waterbury police department. What unit does he work in? He works in the tactical narcotics team.” Undaunted by the defendant’s objection and the trial court’s curative instruction, the prosecutor immediately argued: “You heard that Detective DeMatteis works for the Waterbury police department. You heard that’s how he knows this individual.” (Emphasis added.) These remarks illustrate that the prosecutor deliberately violated the trial court’s specific rulings on the motion in limine.

VII

Our review of the record indicates that the defendant did not properly preserve some of the claims at trial for which he now seeks review. Because the defendant objected and requested curative instructions with enough frequency to alert the trial court to the persistent misconduct, however, and because the record adequately supports that he has been deprived of a fundamental constitutional right and a fair trial, we will review the unpreserved portions. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); see State v. Pelletier, 196 Conn. 32, 34, 490 A.2d 515 (1985). Our review of the record discloses that the multiple instances of blatantly egregious conduct now challenged do not constitute an isolated instance of misconduct, but a pattern repeated through the trial.

The defendant claims that egregious prosecutorial misconduct deprived him of his constitutional right to a fair trial under the due process clause of the federal constitution. In analyzing this claim, we ask whether the prosecutor’s conduct “so infected the trial with unfairness as to make the resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974) .... We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985), quoting State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 204 Conn. 539-40.

In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case. Id., 540.

We have carefully examined the record and conclude that the course of prosecutorial misconduct was in deliberate violation of those matters explicitly and implicitly precluded by the ruling on the motion in limine. With the exception of a response to a single comment, the misconduct was not invited by the defendant’s conduct or triggered by the defendant’s argument. The misconduct bore directly on the critical issue of the defendant’s credibility and the believability of his alibi defense. The prosecutor’s conduct was frequent and severe, and she ignored repeated warnings from the trial court.

We note that the court gave some of the defendant’s curative instructions and ordered some of the objectionable matter stricken from the record. The cumulative effect of the prosecutor’s misconduct throughout the trial was so serious, however, that no curative instruction could reasonably have been expected to remove its prejudicial impact. State v. Fullwood, 194 Conn. 573, 585, 484 A.2d 435 (1984). In this case, the curative measures utilized by the court, consisting of occasional directions to the jury to disregard the remarks of the assistant state’s attorney and of brief charges to the jury were insufficient to eliminate the accumulated harm created by the course of prosecutorial misconduct. Because of the severity and frequency of the misconduct, this is not a situation where we can safely rely on the presumption that the jury will follow the court’s instructions. See State v. Williams, supra, 204 Conn. 549. Although we generally give great weight to a trial court’s effort to eliminate prejudice through a curative instruction, “ ‘[i]f you throw a skunk into the jury box, you can’t instruct the jury not to smell it.’ ” United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979), quoting Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962).

This is not a case in which the state’s evidence is so strong that we can say that the misconduct constituted harmless error. The defendant steadily maintained that Arline was the person in the surveillance photographs and disputed all of the state’s identification testimony. The defendant’s credibility and the believability of his alibi defense were thus pivotal issues for the jury’s determination. The pervasive misconduct directed at the defendant’s credibility and the veracity of his alibi defense was pronounced and persistent, and we cannot dismiss its cumulative effect on the jury as inconsequential. We conclude that the defendant was denied a fair trial in violation of his federal constitutional right to due process of law.

The judgment is reversed and the case is remanded for a new trial.

In this opinion HENNESSY, J., concurred.

FOTI, J.,

dissenting. I respectfully disagree that the defendant was denied a fair trial under the fourteenth amendment to the United States constitution. My review of the record reveals that the alleged prosecu-torial misconduct was neither intentional nor flagrant, was not deliberately designed to undermine the authority of the court and did not rise to the level of substantial prejudice that justifies reversal. While the challenged remarks and conduct are many, I do not discern a pattern of prosecutorial misconduct repeated throughout the trial.

The defendant identifies seven separate instances where he alleges the prosecutor violated the court’s ruling on the motion in limine. I address each of these alleged violations separately.

I

The defendant claims that the prosecutor violated the court’s evidentiary injunction regarding “operation waterbase” by directing improper questions to Sergeant Dennis Coyle and Detective Laura Wigglesworth and from the elicited testimony of Coyle. My examination of the record reveals that the prosecutor’s questions to these witnesses did not violate the court’s order prohibiting the prosecution from eliciting testimony about operation waterbase and the murder that prompted that undercover operation. The court sustained the defendant’s objections on the basis of relevancy and responsiveness. The court did not view this line of inquiry as undermining its ruling on the motion in limine. The defendant suffered little or no prejudice, as the court either ordered the testimony stricken or sustained the objections to the questions in each of the six instances.

II

The defendant next claims that a violation of the court’s order took place during the prosecutor’s redirect examination of Detective Nicholas DeMatteis. On cross-examination of DeMatteis, the defendant elicited that at the time of the undercover operation DeMatteis was named as a defendant in a civil rights suit filed by the defendant against DeMatteis and the Waterbury police department. On redirect, the prosecutor conducted the following query of DeMatteis regarding the nature of the suit.

“[Prosecutor]: Detective DeMatteis, let me start with the last question. Counsel asked you about the civil suit. He asked you whether or not it dealt with false arrest. What does the civil suit specifically stem from?

“[Defense Counsel]: Objection.

“[Prosecutor]: Counsel has addressed the issue, Your Honor.

“The Court: I’m not going to allow any further inquiry into it. I’ll sustain the objection. It’s going to take us into a collateral matter that I don’t think is necessary further for the trial of this case.

“[Prosecutor]: How many times have you had occasion to have dealings with this defendant?

“[Defense Counsel]: Objection, Your Honor.

“The Court: I’m not obliged to rule.

“ [Defense Counsel]: I’m sorry. It’s much more prejudicial than probative.

“The Court: Sustained.”

From that line of questioning and the court’s related rulings, I can discern neither prejudice to the defendant nor a violation of the court’s ruling on the motion in limine, prohibiting evidence of the defendant’s prior police record.

III

The defendant next asserts that the prosecutor twice improperly injected evidence of the defendant’s prior police record by eliciting testimony from two witnesses, Agent William Reiner, of the Federal Bureau of Investigation, and Robert Arline, that the neighborhood was a known narcotic trafficking area. The defendant argues that the following portion of the prosecutor’s direct examination of Reiner is improper.

“[Prosecutor]: Why did you go to that specific location?

“ [Reiner]: Because of the past dealings from that area.

“[Defense Counsel]: Objection, Your Honor. I think it’s not responsive. It’s not a proper question. I think he’s already answered why he went there, and it’s just repetitive. It’s cumulative.

“The Court: I’ll sustain the objection.

“[Prosecutor]: Moving on, Agent Reiner. What, if anything, happened at that date and time?

“[Reiner]: On that date, myself and Detective Nicholas DeMatteis were driving in my undercover vehicle, which is a Nissan Pathfinder with dark, tinted windows. We proceeded down Hawkins Street, observing several known drug dealers or . . .

“[Defense Counsel]: Objection, Your Honor. I’d ask that that be stricken.

“The Court: It may be stricken.”

The defendant contends that on the following day, the prosecutor again improperly attempted to introduce evidence of his prior police record while conducting the direct examination of Arline. The relevant portion of the testimony follows.

“[Prosecutor]: Now, you lived in that area. Is that area, based on your observations having lived there, would you consider that area to be a heavy narcotic area?

“[Defense Counsel]: Objection, Your Honor. That is not probative of anything here. It’s certainly more prejudicial than probative.

“The Court: Sustained.”

The defendant claims that the prosecutor’s line of inquiry circumvented the trial court’s ruling prohibiting evidence of his prior police record and, therefore, prejudiced him by reinforcing the state’s theory that he was a known drug dealer who frequented drug selling areas. I see no merit based on the prosecutor’s line of inquiry in these segments of the transcripts to the defendant’s claim.

IV

The defendant maintains that the prosecutor improperly injected the issue of the defendant’s character before the jury. The prosecutor’s cross-examination of the defendant produced the following testimony.

“ [Prosecutor]: You said on that specific day you didn’t sell any drugs. Is that your testimony?

“[Defendant]: I was nowhere around there on Adams Street that day when they say I was there.

“[Prosecutor]: So, is it just your testimony that on that day you didn’t sell any drugs?

“[Defense Counsel]: Objection, Your Honor.

“[Defendant]: No, I said . . .

“[Defense Counsel]: Objection. There’s an objection.

“The Court: One moment. Do you want to state a reason for your objection?

“[Defense Counsel]: Yes. Objection because it’s immaterial as to — I think it’s going into an inflammatory area.

“The Court: I agree. Sustained. I caution you with regard to these questions.”

The defendant claims that the question posed by the prosecutor implied that on other days he had sold drugs at that location. The transcript, of course, cannot show whether any words were emphasized in the presentation and articulation of the questions, and no argument is made of an improper inflection on any word or combination of words. While the question was inappropriate at best, it neither deprived the defendant of a fair trial, nor so intentionally violated a court order as to require other sanctions.

V

While cross-examining the defendant about his two unnamed felony convictions from the state of New York, the prosecutor looked at a piece of paper about three to four feet in length at counsel table. The defendant claims this breached the court’s ruling because it was his “rap sheet.” The trial court denied the defendant’s motion for a mistrial. The record does not disclose whether the jury knew what the prosecutor was reviewing.

In denying the defendant’s motion for a mistrial, the trial court stated: “Well, it’s pretty hard for me to determine what, if anything, the jury saw other than a printout that was on the table. So, based on the existing record, I’ll deny the motion for mistrial. I don’t think the jury was tainted.” In finding that the prosecutor’s action did not impair the defendant’s right to a fair trial, the trial court saw neither a constitutional due process violation nor a violation of the court’s order. Further, the defendant can only speculate as to prejudice.

VI

The defendant also alleges that the prosecutor violated the court’s order on the motion in limine regarding the defendant’s prior police record during final argument. He argues that the prosecutor improperly inferred that Arline, the subject of the defendant’s third party culpability defense, knew the defendant as a drug dealer, and that DeMatteis knew the defendant from his particular work as a narcotics officer. The defendant asserts that there was no evidence presented to support such inferences, and that any such evidence would not have been permitted because it would have involved prior police investigations and arrests of the defendant.

At trial, several defense witnesses testified that the defendant often visited the Hawkins Street area because his children lived in that area. When the defendant testified, he viewed certain photographs taken by a law enforcement officer at the crime scene during the undercover drug buys. The defendant testified that the person in the pictures wearing a blue hooded sweatshirt, whom the officers had identified as the defendant, was actually Arline, and that he had known Arline because Arline frequented the Hawkins Street area. Arline was called by the state in rebuttal and testified that he had known the defendant for five years, and that he frequently saw the defendant in the Hawkins Street area.

In her main summation, the prosecutor argued, “Who do you think the defendant is going to pick in terms of somebody who he’s claiming is in that picture? And, ladies and gentlemen, think about it. They indicated to you that they knew each other. They knew each other from that area. And you heard from the officers, that’s a very high narcotic area. So, who do you think is going to be there except for people who are out there selling drugs? That is the type of person that the defendant brought in. I’m not here to vouch for Mr. Arline’s credibility. He may be a drug seller. We know in 1990 he was convicted for selling drugs, and that may be what he does. That’s what that area is known for, and that’s how he knows the defendant, from that area.” Defense counsel did not object to this argument.

Later in the prosecutor’s main summation, she commented: “You heard from Detective DeMatteis that he knows this individual, and you heard that he knows him from his work. Ladies and gentlemen, where does he work? He works for the Waterbury police department. What unit does he work in? He works in the tactical narcotics team.” The trial court sustained the defendant’s objection to this latter remark, instructed the jury to disregard it, and admonished the prosecutor.

I agree that the prosecutor’s second remark was improper. The first statement may approach the fringe of impropriety, but because defendant’s counsel did not object or request a curative charge, he could not have viewed the argument of the prosecutor as so prejudicial as to jeopardize his client’s right to a fair trial. See State v. Chase, 199 Conn. 102, 108, 505 A.2d 712 (1986). The defendant, having elected to testify, places his credibility in issue, as does any other witness, and the prosecutor in closing argument is free to challenge the defendant’s version of the facts by referring to evidence properly adduced at trial. State v. Cassidy, 236 Conn. 112, 128, 672 A.2d 899 (1996). The defendant’s “alibi” was, in effect, “I didn’t do it, some other guy [Arline] did.” The prosecutor was free in closing argument to review the evidence as to the identification witnesses and as to this alleged alibi defense.

I do not view the prosecutor’s second remark as so serious as to require a new trial. The main issue involved identity, and, while the defendant’s character was brought in inferentially and improperly during final argument, the court immediately cautioned the jury to disregard it.

VII

Last, the defendant claims that the prosecutor improperly used her final argument to inflame the passions of the jury. During closing argument, defense counsel argued, “I think, and I would submit to you that as good people, as good citizens like I know you are, you could never convict a man on this kind of case, never. You could never convict a man on such a shabby case, and a case where the evidence is so lacking, so many holes, so many missing things. You couldn’t do that as a good person or as a good citizen. You know, it sounds corny, but, it would be unAmerican. It would be unAmerican to do something like that. God forbid it happens in this case. It just wouldn’t be right.”

The prosecutor addressed the defendant’s call for patriotism in her rebuttal argument, the pertinent segment of which follows.

“[Prosecutor]: Counsel is saying to you that, in fact, the government was somehow lax, lax in its procedures when it tried to put together its case. What I’m going to submit to you, ladies and gentlemen, is that, in fact, the government and the police department did everything that they possibly could. Now, certainly, in an ideal world, an ideal world, would we like to know who every single person in this picture is? Yes, of course. Is that practical, ladies and gentlemen? No. You heard the testimony of the different officers. You heard that they were putting their lives on the line. I think as just members of society, I think your common sense would tell you that they’re putting their lives on the line.”

The trial court sustained the defendant’s objection on the ground that no evidence had been introduced at trial that the officers’ lives were in danger. While not perhaps invited, the remarks were nevertheless inconsequential, and satisfactorily corrected by the court.

The defendant complains that the prosecutor, during rebuttal summation, repeatedly vouched for the credibility of the police witnesses. During defense counsel’s final argument, he characterized the police as “young and ambitious,” insinuated that they had conspired to identify the defendant falsely during a preliminary hearing, asserted that both the police and prosecutor had a reasonable doubt respecting the defendant’s guilt, called DeMatteis a “bald-faced liar,” suggested that he had a motive to lie, and described the power of the state and the prosecutor as “scary.” I view the prosecutor’s closing remarks, in response to this, as being perhaps improper, but not comprising a pattern or being of such an egregious nature or so prejudicial as to require a new trial. Our Supreme Court has stated that the linchpin for evaluating claims of improper prosecutorial argument is the fairness of the trial, rather than the culpability of the prosecutor. State v. Cassidy, supra, 236 Conn. 131.

During the defendant’s closing argument, counsel argued that the state was remiss in failing to analyze the plastic bags, allegedly containing cocaine purchased by the police, for Arline’s fingerprints. The defendant’s counsel stated, “The man is saying it’s not him. We want to lift the print. We want to compare it. They’re indicating it might be Mr. Arline. We’ve got his fingerprint card. We’d like to rule him out. Why not fingerprint the bags? You don’t have to be Matlock to come up with these things. Why not take the fingerprints? Why not request, why not at least request lab, fingerprint the bags? Then if they don’t do it, you can say, hey, I made the request. You know, it’s their job. Then I can get on Dr. Milzoff, but, hey, how can I do that? He’s not even asked to do it. He has to do one simple thing, test for narcotics. Surprise. Surprise.” The prosecutor, in her rebuttal argument, responded to this argument with the following challenged remark: “[T]hen counsel said, well, perhaps they could have taken the fingerprints two weeks ago when the defendant first brought up Mr. Arline’s name. So, it’s just this past two weeks because Mr. Arline’s name is brought up now we’re suddenly going to take fingerprints. Well, now, the drugs have already been tested, so, how many people do you think have handled this one little envelope. I can tell you a lot of people have handled it. You think we’re going to get fingerprints on this two weeks ago when the defendant just decided to give the name? No, no. I submit that argument is a smoke screen, ladies and gentlemen, a smoke screen.”

The defendant’s claim is not properly preserved. I would not review this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as it does not raise a question of constitutional magnitude.

Last, the defendant alleges that the prosecutor during final argument misallocated the state’s burden of proof. I view this claim as being inadequately briefed because the defendant has failed to provide this court with either a legal analysis or any legal authority to support his claim. I would, therefore, not review this claim. State v. Mozell, 37 Conn. App. 574, 579-80, 657 A.2d 686, cert. denied, 234 Conn 910, 660 A.2d 355 (1995).

I conclude that none of the defendant’s claims of prosecutorial misconduct, individually or taken altogether, justifies reversal of the defendant’s conviction. Perhaps the record reveals the actions of an overzealous prosecutor, but I do not view her words and conduct as to have so infected the trial with unfairness as to make the conviction a denial of due process. State v. Sherman, 38 Conn. App. 371, 376, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995). My review of the record does not disclose the abundance of glaring, outrageous prosecutorial misconduct that the defendant professes occurred during the trial, or a pattern of such misconduct throughout the trial. The minimal prejudice that the defendant may have suffered makes the sanction of reversal inappropriate.

I would affirm the judgment of the trial court.

       Providing an exhaustive list of the misconduct that pervaded this trial would be impractical; we have included a representative sample of the misconduct alleged in some of the defendant’s claims. See State v. Williams, supra, 204 Conn. 523. The defendant’s additional claims of prosecutorial misconduct are fully discussed in the dissent that follows.

       We note that this argument is also contrary to the evidence adduced by the state that the officers put the plastic bags inside envelopes immediately following the transactions.

       While I recognize that the majority has not specifically addressed some of these alleged violations or determined them to be improper conduct, I nevertheless must address each for purposes of concluding that there was no pattern of prosecutorial misconduct.

       The undercover narcotics investigation was known as operation waterbase.

       The six instances are as follows: (1) on direct examination of Coyle:
      “[Prosecutor]: But you were working on that day?
      “[Coyle]: Yes.
      “[Prosecutor]: What was your capacity on that day?
      “[Coyle]: I was doing an undercover operation in the north end of Waterbury. What I was doing, we had a major investigation—
      “[Defense Counsel]: I’m going to object, Judge, it’s not responsive.
      “The Court: Just one moment. Let’s hear you.
      “[Defense Counsel]: She asked him what he was doing; he said he was working undercover in the north end of Waterbury; now he’s going beyond that.
      “The Court: I agree. I’ll strike what goes beyond.”

        (2) on direct examination of Coyle:
      “[Prosecutor]: Now, when you indicate — Strike that. How did it come that you were working with people not only from your office, but from Waterbury, as well as the [Federal Bureau of Investigation]?
      “[Defense Counsel]: Objection.
      “The Court: Counsel approach the bench, please.
      [Bench conference]
      “[Prosecutor]: I’ve informed him that he’s not allowed to—
      “The Court: I know what that answer is going to be.
      “[Prosecutor]: I’ve informed him that in terms of my questions he’s not to indicate wiretap. What I’m getting at is that based upon the number of complaints they had comprised a big team in order to go out and strike—
      “The Court: Let’s stay to this case.
      [Bench conference ends.]
      “The Court: I’ll sustain the objection based on the bench conference.”
      (3) on direct examination of Coyle:
      “[Prosecutor]: Now, you indicated that you were going to a specific area, you indicated the north end of Waterbury; were there specific areas that were targeted on that day?
      “[Coyle]: Yes. We had targeted, as part of an investigation, certain retail outlets which we considered part of an organization—
      “[Defense Counsel]: I’m going to object, Judge, it’s not responsive to her question. She asked — If you want me to go on—
      “The Court: Sure, go ahead.
      “[Defense Counsel]: Where did you go? He answered, he went to the north end. Now he’s going to give a mini seminar; I don’t think it’s proper.
      “The Court: I’ll sustain the objection. Put another question to him.”
      (4) on direct examination of Coyle:
      “[Prosecutor]: As supervisor of this undercover operation, were specific individuals targeted?
      “[Defense Counsel]: Objection, Your Honor.
      “The Court: Sustained.”
      (5) on direct examination of Wigglesworth:
      “[Prosecutor]: In terms of the operation, where — would you say this was the beginning or the end, where was it in terms of the operation itself?
      “[Defense Counsel]: Objection.
      “The Court: Sustained.”
      (6) on direct examination of Wigglesworth:
      “[Prosecutor]: So it was an ongoing operation?
      “[Wigglesworth]: It was an ongoing—
      “[Defense Counsel]: Objection.
      “The Court: Sustained.”

       The court repeatedly instructed the jury that evidence stricken from the record could not be considered by them. The court also advised the jury that there was no evidence in the record that the defendant is a known drug dealer. The court informed the jury that the attorneys were not witnesses and that the questions they asked were not to be considered as evidence. The jury is presumed to have followed the court’s instructions. State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986).

       The defendant, on direct examination, admitted that he had been convicted of two unnamed felonies in New York.

       The defendant points to five instances during the rebuttal summation: (1) “[The Prosecutor]: I would submit to you that all these officers are extremely honest, that they can testify as completely as they possibly can.”
      (2) “[The Prosecutor]: I would submit to you there’s no evidence, that they did not testily dishonestly . . .
      (3) “[The Prosecutor]: Are we all involved in some conspiracy against the defendant? I would submit to you that of course we are not, of course we are not.”
      (4) “[The Prosecutor]: [Defense counsel] suggests to you that Detective DeMatteis is, in his words, a bold-face liar. Well, I would submit to you, ladies and gentlemen, that there’s no evidence of that. Detective DeMatteis was very honest with you.”
      (5) “[The Prosecutor]: Again, these officers don’t work together. They were united for this one special project. They’re from all different walks of the state. They all testified. They all told you honestly what they saw, what they remembered, and what they remember is that they bought drugs from the defendant. There was no doubt in their mind, no doubt whatsoever.

       The defendant neither requested a mistrial nor a curative instruction, but he did object to two of the five comments.

       Our Supreme Court has held that the failure of defense counsel to take exception to remarks of the prosecutor, either at the time they were made or at the close of the final argument, is a waiver of the right of the defendant to press this claim as error. State v. Lubesky, 195 Conn. 475, 488 A.2d 1239 (1985).

       As an alternative, the defendant asks that, if we conclude that the prosecutorial misconduct was not so egregious as to deprive him of a fair trial under the fourteenth amendment to the United States constitution, we exercise our supervisory powers to vacate the judgment of conviction because the misconduct was unduly offensive to the maintenance of a sound judicial process. State v. Fullwood, 194 Conn. 574, 584, 484 A.2d 435 (1984). I do not conclude that the challenged questions or remarks were a flagrant disregard of the court’s order deliberately designed to undermine the authority of the court and, therefore, that those necessitate a new trial.


author: LAVERY, J. HENNESSY, J.,

text:
    STATE OF CONNECTICUT v. CHARLES ROGERS
    (13685)
    Lavery, Spear and Hennessy, Js.
    Argued October 23, 1995
    officially released April 30, 1996

      David A. Bachman, special public defender, for the appellant (defendant).

      Margaret Gaffney Rodionovas, assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) permitted the state to inject the issue of the defendant’s religious beliefs during his cross-examination, (2) permitted the state to pose questions to the defendant that required him to assume that he was guilty and (3) denied the defendant’s request to inspect the psychiatric records of a prosecution witness. Because we conclude that the trial court improperly permitted the state to ask the defendant questions that required him to assume his guilt, we reverse the judgment of conviction and remand the case for a new trial.

The jury reasonably could have found the following facts. In March, 1993, the defendant was residing with his girlfriend, Desiree Brooks, in her New Haven apartment. During that same period, the victim, Brooks’ six year old niece, was also residing with Brooks. During the late evening hours of March 18 or the early morning hours of March 19, 1993, while Brooks was out with friends, the defendant entered Brooks’ bedroom where the victim was lying on her back in Brooks’ bed. The defendant pulled down the victim’s pajama pants and underwear and inserted his finger into her vagina.

The following course of events, which took place at the trial, is pertinent to the resolution of the issues in this appeal. During the state’s case-in-chief, after the jury had seen videotaped testimony of the victim, but before any other witness testified, the trial court conducted a hearing outside the presence of the jury on the defendant’s motion for both an in camera review and examination of Brooks’ psychiatric records. The defendant previously had subpoenaed the records from Yale Psychiatric Institute, where Brooks had been a patient for ten days in November, 1993. The trial court reviewed the records in camera and determined that there was nothing in them that was probative of Brooks’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. The trial court denied the defendant’s motion to examine the records.

During the defendant’s case-in-chief, the defendant testified on his own behalf. The defendant held a Bible while he testified on direct examination, but defense counsel did not elicit any testimony concerning the Bible. The defendant admitted on direct examination that he previously had been convicted of a felony and had misrepresented his name to the police when he had been arrested on four separate occasions in the past.

During cross-examination, the defendant admitted that he had committed four larcenies. The state’s attorney then questioned the defendant about the Bible that he had held during direct examination. During cross-examination, the following exchange occurred:

“[State’s Attorney]: And I noticed, by the way, when you first walked up to the witness box to begin your questioning by [defense counsel] you were carrying a book with you, weren’t you?

“[The Defendant]: Yes.

“Q. And what book was that? Oh, it’s over there.

“A. Yes, it’s the Bible.

“Q. The Bible. Did you need the Bible up there with you to remind you to tell the truth, sir?

“A. No.

“Q. Did you have the Bible with you when you were living with [Brooks] in March of 1993, sir?

“A. No, sir.

“Q. Did you have the Bible with you in any of those cases when you went into those stores and stole that stuff?

“A. No, sir.

“Q. Or when you lied to the police about your name?

“A. No, sir.

“Q. You got the Bible with you now, Mr. Rogers?

“A. Yeah, I got it with me right now. I’m not lying, though, I can take a lie detector.”

Defense counsel did not object to these questions and the state’s attorney did not mention the Bible again during the trial. At the end of cross-examination, the state’s attorney asked the defendant: “If you had touched the child, if you had stuck your finger in [the victim’s] vagina, Mr. Rogers, would you come into the courtroom here and tell us you did?” The defendant objected to the line of questioning, and the trial court overruled the defendant’s objection.

I

The defendant first claims that he was denied a fair trial because the trial court permitted the state’s attorney to question him on cross-examination regarding the fact that he had carried a Bible to the witness stand. The defendant seeks review of this unpreserved claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). This court has previously recognized that “[t]he first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994). We conclude that the defendant has not raised a claim of constitutional magnitude and, therefore, we do not reach the merits of this unpreserved issue.

The fact that questioning refers to religion does not automatically implicate constitutional rights. In State v. Jones, 205 Conn. 723, 739, 535 A.2d 808 (1988), our Supreme Court noted that “[i]t is conceivable that the first amendment right of a witness not to affiliate with any religion may be implicated where his lack of such an affiliation with a church is publicly exposed by the interrogation of a public official in a situation where such a church relationship is wholly irrelevant to any proper subject of governmental inquiry.” In that case, the court held that it was not improper for the trial court to allow the state to ask defense alibi witnesses on cross-examination whether they had ever reported their alibi evidence to aperson in aposition of authority, such as a police officer, clergyman or pastor. The court concluded that the defendant “cannot rely upon a possible violation of the constitutional rights of his defense witnesses, unless there has been some impact upon his own constitutional right fair trial.” Id.

This court has recognized a general prohibition against cross-examination on one’s religious beliefs. In State v. Heinz, 3 Conn. App. 80, 485 A.2d 1321 (1984), this court reviewed the trial court’s exclusion of a prosecution witness’ testimony concerning religious beliefs. The witness had testified on direct examination as to her opinion of whether certain conduct was obscene. On cross-examination, the defendant sought to question the witness about her moral and religious beliefs. We held that the trial court had improperly excluded this testimony because the witness’ religion was relevant to her direct testimony and intertwined with the substantive issues in the case. Id., 93-96.

A review of these cases leads us to conclude that certain questions concerning religion are proper if the defendant has put his religious beliefs into issue during his direct testimony or the defendant’s religious beliefs are related to the case. Absent a state constitutional provision specifically proscribing such an inquiry, questions concerning religion are treated as evidentiary issues when the defendant seeks to strengthen his credibility through the use of religion. When the defendant brought the Bible to the witness stand, he was presenting himself as a religious person, thereby opening the door to cross-examination concerning how his religious beliefs were inconsistent with his prior acts. Id., 95. The propriety of cross-examination under those circumstances would be an evidentiary issue and would not rise to a claim of constitutional magnitude as required by Golding,

II

The defendant claims that the trial court improperly allowed the state to ask the defendant questions that required him to assume that he was guilty. The state argues that these questions were merely hypothetical and that it was within the discretion of the trial court to allow them. The state further argues that the trial court did not abuse its discretion, as the questions were targeted to the defendant’s credibility. Finally, the state contends that even if the questions were improper, the error was harmless in light of the strong evidence of the defendant’s guilt. We conclude that the trial court abused its discretion by allowing this highly prejudicial line of questioning.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993), appeal withdrawn on January 7, 1994.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291 (1995).

It is well settled that on cross-examination, the examiner may not couch the question so that it assumes as true matters to which the witness has not testified and that are in dispute between the parties. 1C. McCormick, Evidence (4th Ed. 1992) § 7. Such a statement is improper “because it may by implication put into the mouth of an unwilling witness, a statement which he never intended to make, and thus incorrectly attribute to him testimony which is not his.” 3 J. Wigmore, Evidence (Chadbourn Rev. 1970) § 780; see also United States v. DeFillipo, 590 F.2d 1228, 1240 (2d Cir. 1979). “Questions that mislead a witness are objectionable, such as those that assume facts in dispute or not in evidence. State v. Isaacson, 114 Conn. 567, 574, 159 A. 483 (1932); State v. Duffy 57 Conn. 525, 526-27, 18 A. 791 (1889). Questions that argue with a witness are also improper, Frenchette v. New Haven, 104 Conn. 83, 96, 132 A. 467 (1926), such as those that ask him to agree with the examiner’s facts or interpretations or that ask if he heard or agreed with contrary testimony of another witness . . . .” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.12.3.

The state directs this court to State v. Gaffney, 209 Conn. 416, 551 A.2d 414 (1988), in which our Supreme Court addressed a defendant’s claim that the trial court had improperly allowed the state to cross-examine the defendant with a hypothetical question. In Gaffney, the defendant pleaded guilty to all of the elements of the offenses with which he was charged, but a trial was conducted on the defendant’s insanity defense. The defendant essentially admitted that he had entered the victim’s residence and tied her to her bed. During cross-examination, the state asked the defendant: “ ‘If there were six police officers sitting at the kitchen table playing poker, you think you would have gone into that bedroom and tied [the victim] to the bed?’ ” Id., 419-20. Our Supreme Court found the question relevant and held that “[i]n allowing the hypothetical question complained of, the trial court, in keeping with that line of questioning, was obviously permitting the state to plumb the depths of the defendant’s capacity to restrain himself under various circumstances. Such an inquiry was at least of some relevance to the defendant’s ability to control his conduct within the requirements of the law, which is an integral facet of the statutory defense of insanity and was the central issue in the case.” Id., 421. The court concluded that even though the state’s question hypothesized an extreme situation, “the allowance of the hypothetical question posed by the state lay within the broad discretion afforded the trial court to determine the permissible scope of cross-examination.” Id.

The state’s questions in this case are distinguishable from those in Gaffney. In Gaffney, the court found that the question was relevant and probative as to the central issue of insanity. The issue in that case was whether the defendant would have committed the crime if the circumstances were different. The question was probative as to that ultimate juiy issue. In this case, the prosecution asked the defendant to assume that he was guilty for the purpose of testing the defendant’s veracity. The questions required the defendant to assume facts in dispute and to concede the ultimate jury issue. In Gaffney, the defendant was not asked to make any such assumption or concession.

We conclude that the trial court abused its discretion by allowing the state’s attorney to ask the defendant questions that required him to assume that he was guilty. The argumentative line of questioning by the state’s attorney was so prejudicial to the defendant that a substantial injustice will result if the defendant is not afforded a new trial. See State v. Payne, 219 Conn. 93, 114, 591 A.2d 1246 (1991). A review of the record in this case persuades us that the defendant’s credibility was crucial to his case, and placing the defendant in a position in which he was forced to testify as if he had committed the crime severely undermined his defense. By allowing the state to end its cross-examination with this highly improper line of questioning, the trial court allowed the state’s attorney to leave the defendant’s assumption of guilt in the jurors’ minds. We find that the improper questions asking the defendant to assume that he was guilty had the tendency to influence the judgment of the jury such that it cannot be considered harmless error. See id., 106; State v. Onofrio, 179 Conn. 23, 32, 425 A.2d 560 (1979). We conclude that the trial court abused its discretion by allowing the improper questions and the defendant must be afforded a new trial.

HI

We also address the defendant’s final claim because it is likely to arise again in the defendant’s new trial. The defendant claims that the trial court violated his constitutional right of confrontation by failing to ask a witness if she would allow her psychiatric records to be examined by the defendant’s attorney. We disagree.

Our courts have recognized the conflict between a defendant’s right to confrontation and cross-examination and the public policy interest of preserving the confidentiality of certain records. State v. Pratt, 235 Conn. 595, 607-608, 669 A.2d 562 (1995); State v. D’Ambrosio, 212 Conn. 50, 57, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990). In D Ambrosio, the Supreme Court directed trial courts to engage in a special procedure designed to accommodate this inherent tension. First, the defendant must show that there is a reasonable ground to believe that the failure to produce the records would likely impair the defendant’s right to impeach the witness; second, if successful, the state must then obtain permission from the witness for the court to inspect the records in camera; third, the court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. Id., 58. If the court determines that the records are probative, then the state must obtain the witness’ further waiver of his or her privilege concerning the relevant portions of the record for release to the defendant. Id. If the court finds no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for possible appellate review. Id. This procedure preserves the right of confrontation in a manner that allows the court, as a legally trained objective reviewer, to decide whether the record contains information relevant and material to the defendant’s cross-examination of that witness. The procedure simultaneously preserves the confidentiality of the witness’ psychiatric records.

The defendant claims that the witness was willing to waive her privilege and, therefore, there was no reason for the court to insert itself between the witness’ records and the defendant’s review and use of them. A review of the court transcript shows that the court questioned the witness as part of the application of the procedure set forth in D 'Ambrosio, and the witness gave the court permission to review her psychiatric records in camera if the court felt that it was appropriate to do so pursuant to the procedure. The witness also gave the court permission to show the state’s attorney and defense counsel those portions of the records that the court felt were appropriate to show to them. The court, after argument by both parties, determined that the defendant had made a preliminary showing that the failure to produce the records would likely impair his right to impeach the witness. The court relied on the fact that the witness was in treatment, in part, because of the guilt she felt about leaving the victim with the defendant on the night the sexual assault took place. After reviewing the records in camera, the court concluded that there was nothing in the records that was especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. The court then denied the defendant’s request that the court ask the witness to allow the defendant to inspect her psychiatric records. The court made the defendant aware that although the request to inspect the records was denied, the defendant could cross-examine the witness as to whether her guilty feelings affected the reliability of her testimony. The defendant chose not to do so.

We conclude, in light of the trial court’s findings after the in camera inspection, that the records did not contain probative information and the trial court did not abuse its discretion in denying the defendant access to the records. Furthermore, the trial court did not improperly refuse to ask the witness to allow the defendant access to her psychiatric records. The court adequately protected the defendant’s right to confrontation by performing the in camera review and allowing cross-examination on the issue of the witness’ reliability with respect to her guilt feelings.

The judgment is reversed and the case is remanded for a new trial.

In this opinion SPEAR, J., concurred.

HENNESSY, J.,

concurring. While I do not disagree with the majority on parts II and III of its decision, I write separately to state that I would reverse the judgment of the trial court on the ground that the state unconstitutionally injected the issue of the defendant’s religious beliefs into the case during cross-examination. The majority has sufficiently set forth the pertinent facts.

The defendant seeks review of this unpreserved claim ■under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The state contends pursuant to the first prong of Golding, that the defendant did not establish an adequate record for review. In support of their contention, the state claims that because the record reflects neither the size of the Bible nor the manner in which the defendant displayed the Bible before the jury, if at all, it is impossible to determine whether his carrying a Bible to the witness stand was motivated by sincere religious sentiment or was intended to have the jury view the defendant favorably as a religious person unlikely to have committed the act with which he was charged. The state argues, therefore, that it is impossible to characterize the state’s questions as either clearly evidentiary or arguably constitutional. The defendant claims that the transcript of the questions asked and the responses given presents an adequate record to determine whether this claim is of constitutional or evidentiary nature. I conclude that the record is adequate to make this determination, and, therefore, conclude that the first prong of Golding is satisfied.

The second prong of Golding is also satisfied. A defendant’s religious beliefs are generally not a proper subject of cross-examination for the purpose of impeaching credibility. Such an inquiry is ordinarily irrelevant to the issues at hand, inflammatory and unduly prejudicial. State v. Heinz, 3 Conn. App. 80, 94, 485 A.2d 1321 (1984). Our Supreme Court has warned the state “that it must exercise caution when exploring lines of questioning that implicate religious belief. The state should avoid any inquiry into or reference to religious belief or practices unless the nature of the case makes religious belief an unavoidable issue.” State v. Jones, 205 Conn. 723, 740, 535 A.2d 808 (1988). “This general prohibition against cross-examination on one’s religious beliefs is not absolute, however. Such cross-examination is permissible, in the court’s discretion, if it is relevant to the substantive issues of the case and if its relevance outweighs any prejudicial effect and the privacy interest of the witness. . . . Furthermore, cross-examination about religious beliefs is proper if the topic was raised on direct examination, even if it would otherwise be inadmissible.” (Citations omitted.) State v. Heinz, supra, 94-95.

The record reveals that the state intended to attack the defendant’s credibility through the use of religion. It is evident from the record that the questioning was neither relevant to an issue in the case nor relevant to the direct examination of the defendant. Therefore, the possibility that these questions, pertaining to the defendant’s religious beliefs, deprived the defendant of a fair trial is of a constitutional magnitude. State v. Jones, supra, 205 Conn. 738-39.

Next, I address the third prong of Golding. Our case law allows certain questions related to religion if the defendant has put them into issue during his direct testimony or they are related to the case. In this case, the state failed to establish that its questions related to the defendant’s direct testimony or were part of the case. The assistant state’s attorney should have clarified the record by objecting to any claimed improper use of the Bible or by requesting that the record reflect the manner of any alleged display of the Bible by the defendant during direct examination. Furthermore, the state had the opportunity to question the defendant during cross-examination about the size and display, if any, of the Bible but chose not to do so. Nothing in the record indicates that the Bible was visible to the jury during direct examination. By failing to establish that the defendant had put the Bible at issue during his direct testimony, the state cannot escape the conclusion that it was using the fact that the defendant carried a Bible for the sole purpose of attacking his credibility.

In State v. Jones, supra, 205 Conn. 739, our Supreme Court held that it was not improper for the trial court to allow the state to ask defense alibi witnesses on cross-examination whether they had ever reported their alibi evidence to a person in a position of authority, such as a police officer, clergyman or pastor. The court held that while this type of questioning referring to church officials implicated constitutional rights, it was not improper because “the state’s questions may reasonably be construed as designed to elicit whether these witnesses had reported their alibi evidence to a person in a position of authority before the trial rather than to discredit these witnesses by calling attention to their religious affiliations or lack thereof.” Id., 736-37.

This court has also recognized a general prohibition against cross-examination on one’s religious beliefs. State v. Heinz, supra, 3 Conn. App. 94. In Heinz, this court reviewed the exclusion of prosecution witness’ testimony concerning religious beliefs. Id., 93. The witness had testified on direct examination as to her opinion of whether certain conduct was obscene. Id., 94. We held that the trial court had improperly excluded this testimony because the witness’ religion was relevant to her direct testimony and intertwined with the substantive issues in the case. Id., 95-96.

In this case, the questions standing alone clearly establish that the state used the Bible to attack the defendant’s credibility — a practice condemned by this court and our Supreme Court. State v. Jones, supra, 205 Conn. 740; State v. Heinz, supra, 3 Conn. App. 94-95. I agree with the state that if the defendant had earned the Bible to the stand in an obvious manner and displayed it in a way designed to influence the jury and strengthen his credibility, the state could cross-examine the defendant about his religious practice of carrying a Bible. There, the topic would have been raised on direct examination. State v. Heinz, supra, 95. Cross-examination under those circumstances would be evidentiary and would not rise to the constitutional level required by the second prong of Golding.

The record, however, is clear that the state’s questions centered on the issue of religion and the defendant’s religious beliefs for the sole purpose of attacking the defendant’s credibility. The questions were improper, and under the circumstances of this case, deprived the defendant of a fair trial. See People v. Hall, 391 Mich. 175, 215 N.W.2d 166 (1974); State v. Kimbrell, 320 N.C. 762, 360 S.E.2d 691 (1987). I would conclude that a constitutional violation clearly exists, and that the violation clearly deprived the defendant of a fair trial.

Having determined that the first three prongs are satisfied, I address the fourth prong of Golding, whether “if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 240. The state’s questions relating to the Bible attacked the defendant’s credibility on the basis of his religious beliefs. Because the defendant’s credibility was a central issue in this case, the state’s improper questions necessarily affected the defendant’s opportunity for a fair trial. In light of the inflammatory and prejudicial nature of these questions and the state’s failure to establish that they were unavoidable, I would conclude that the state’s questions regarding the Bible were not harmless and the defendant was deprived of a fair trial. See People v. Hall, supra, 391 Mich. 175; State v. Kimbrell, supra, 320 N.C. 762.

Accordingly, I would reverse the judgment of the trial court and remand the case for a new trial on the ground that the state improperly injected the defendant’s religious beliefs into the case in its cross-examination of the defendant.

       The defendant had previously told the police that his name was Gregory Ogman. Gregory Ogman is a friend of the defendant who was present in Brooks’ apartment at the time the sexual assault took place.

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

       Arizona, for example, has a specific state constitutional provision prohibiting questioning any witness as to his religious belief for the purpose of affecting his credibility. See Ariz. Const., art. II, § 12; State v. Thomas, 130 Ariz. 432, 636 P.2d 1214 (1981).

       Even if this issue were of constitutional dimension, we should decline to review it. Because we reverse on another issue, and this issue is unlikely to arise in the new trial, we should heed the wise admonition to refrain from resolving constitutional claims unless necessary. “This court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitu-tional ground exists that will dispose of the case.” Moore v. McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986). “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity.” (Internal quotation marks omitted.) Id., 21.

       The following colloquy occurred on cross-examination of the defendant:
      “Q. Of course, if you had stuck your finger in [the] six year old [victim] you’d come into court here and you’d tell the jury that you did that, wouldn’t you, sir?
      [Objection made and overruled.]
      “Q. You’d come in here, wouldn’t you, sir if you’d stuck your finger in [the victim] and tell the jury [and] the judge you’d done it, you’d do that, wouldn’t you, sir, would you tell them that?
      “A. State that again.
      “Q. If you had stuck your finger in [the victim], you’d come into the courtroom here and you’d tell the jury, you’d tell the judge you did it, wouldn’t you ?
      “A. No, I wouldn’t. I mean, I haven’t touched her, so why are you making me try to look like I touched her?
      “Q. I’m not asking you that, I’m asking you if you had done that you’d say you did it if you had done it, sir, you’d tell the judge that you did do it, is that your testimony?
      “[Defense Counsel]: Objection.
      “The Witness: I haven’t touched her, so.
      “The Court: Just a minute. What’s your objection?
      “[Defense Counsel]: It’s argumentative.
      “[Assistant State’s Attorney]: It’s the same question I’ve asked that he hasn’t answered yet.
      “The Court: Overruled.
      “[Defense Counsel]: It’s a hypothetical question, it’s not the same as the question I asked.
      “[Assistant State’s Attorney]: There is no—
      “[Defense Counsel]: It’s not the reverse of the question I asked, it’s a hypothetical question, if you did this and I say that, that’s a hypothetical question.
      “[Assistant State’s Attorney]: [Defense counsel] asked him if he did and he said no.
      “[Defense Counsel]: I asked the fact, not if he didn’t.
      “The Court: Overruled.
      “[Assistant State’s Attorney]: Do you understand my question, Mr. Rogers?
      “A. Yes, I do. I haven’t touched the child.

        “Q. If you had touched the child, if you had stuck your finger in [the viclim’s] vagina, Mr. Rogers, would you come into the courtroom here and tell us you did?
      “A. No.”

       A defendant may prevail on a claim of constitutional error not properly preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the claim; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).