author: WEST, J.

text:
    STATE OF CONNECTICUT v. LESTER MCHOLLAND
    (AC 21326)
    Foti, Dranginis and West, Js.
    Argued May 3 —
    officially released July 16, 2002

      Jeffrey G. LaPierre, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Gail P. Hardy, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Lester McHolland, 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) (1). On appeal, the defendant claims that the trial court violated his constitutional right to confrontation and to provide a defense by limiting his use of the victim’s psychological records, which the court concluded were protected by the rape shield statute. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In July, 1999, the victim was twenty-one years old and the defendant was thirty-eight. About one week before the incident that gave rise to the defendant’s conviction, a mutual friend had introduced the victim to the defendant. The victim and the defendant lived in close proximity to one another in Waterbury.

On the morning of July 7, 1999, while the defendant was performing repairs to his motor vehicle in front of the friend’s home, the victim walked by and stopped to have a conversation with him. The victim asked the defendant whether he would like to go to the movies. He responded that he had to repair his vehicle and that he needed to go to the junkyard for parts. He asked the victim if she needed transportation and then drove her to her apartment.

The defendant parked his vehicle outside the apartment while the two continued to talk and then began to tickle and kiss one another. They soon entered the victim’s apartment and engaged in consensual penile-vaginal intercourse. In the midst of intercourse, the victim told the defendant that she expected her counselor to arrive with the medicine she took for manic depression. They stopped their sexual activity, showered and awaited the counselor’s arrival. After the medicine was delivered and ingested by the victim, the defendant drove the victim to a social club for the mentally impaired.

At approximately 9 o’clock that evening, the victim saw the defendant working on his vehicle outside the home of his cousin with whom he resided. The victim again asked the defendant to go to the movies with her and he consented. While they were returning from the movies at about 11:30 p.m., the two discussed sex. They agreed that the defendant would come back to the victim’s apartment after he returned his cousin’s vehicle.

The defendant immediately went back to the victim’s apartment and knocked on her window as she had instructed him to do. She then let him enter by the common front door. The victim had changed into a nightgown and prepared herself something to eat. The defendant rubbed the victim’s feet and back, and the two again engaged in consensual vaginal intercourse. During their sexual encounter, defendant inserted his penis into the victim’s rectum. The victim screamed, told the defendant that she did not like anal intercourse and asked him to stop several times. When the defendant withdrew, the victim was furious and crying. She ordered the defendant to leave, which he did.

At approximately 1 a.m. on July 8, 1999, the victim telephoned the friend, told her that the defendant had raped her and asked the friend to come to her apartment. The victim also telephoned her neighbor. The neighbor could not understand the victim because she was hysterical. The neighbor went to the victim’s apartment, and the victim told her that the defendant had raped her. The victim was so angry that she broke three windows in her apartment. As the friend was driving to the victim’s apartment, she saw the defendant walking home. The defendant told the friend that he had inserted his penis in the victim’s rectum and that she started to scream. The defendant asked the friend to take him to the victim’s apartment so that he could apologize. When the victim saw the defendant, she began to scream. The defendant returned to his home.

When the police arrived, the victim told Officer Richard Baxter of the Waterbury police department that the defendant had raped her and had put his penis in her anus. Baxter then called for other officers to pick up the defendant for questioning. The police found the defendant at his home and took him to the scene. Baxter read the defendant his Miranda rights. The defendant waived his rights and agreed to speak with Baxter. He told Baxter that he and the victim had engaged in consensual sexual relations earlier in the day. The defendant told Baxter that after going to the movies with the victim, he had been rubbing the victim’s back and that when he inserted his penis in her anus, she began to scream. Baxter asked the defendant whether he stopped when the victim asked him to do so. The defendant replied that he did not stop right away. The defendant was taken to the police station where he gave a written statement in which he admitted that he had restrained the victim despite her requests that he cease anal intercourse. He was charged with sexual assault in the first degree pursuant to § 53a-70 (a) (l).

Following his conviction, the defendant appealed to this court, claiming that the trial court had denied him his constitutional rights to present a defense and to confront the victim by refusing to let him use the victim’s psychiatric records to impeach her on cross-examination. To be more specific, the defendant claims that the court should have let him cross-examine the victim with respect to her mental health records concerning hallucinations and delusions, as they related to her response to anal intercourse. The state argues that we should not review the defendant’s claim because it was not preserved at trial. The state contends that at trial, the defendant sought to cross-examine the victim about flashbacks and posttraumatic stress disorder as they related to her reaction to anal intercourse with the defendant. The state correctly notes that on appeal, the defendant has focused on hallucinations and delusions, not flashbacks.

The following procedural facts are pertinent. The victim has a history of mental illness and has been hospitalized for psychiatric treatment a number of times. The defendant sought access to her records. Following an in camera review, the court, Damiani, J., disclosed some of the victim’s records to the defendant as they might relate to the victim’s credibility. Prior to trial, the state filed a motion in limine seeking, pursuant to General Statutes § 54-86f, to prevent the defendant from offering evidence of the victim’s sexual conduct other than conduct forming the basis of the instant charge unless the defendant had filed a prior motion to admit such evidence and the court had determined, following a hearing and offer of proof, that the evidence comported with § 54-86f, was admissible and had probative value that outweighed its prejudice to the victim.

The court, Doherty, J., heard arguments from the parties on April 10, 2000. The state argued that the defendant should not be permitted to inquire about the victim’s prior sexual history, including prior sexual assaults, unless he satisfied one of the requirements of § 54-86Í. Defense counsel responded, “There is one particular incident that the defense would like to inquire about, and that is a 1988 sexual assault, in which she was the victim of, I believe, a neighbor. She also has been diagnosed with posttraumatic stress disorder and also in the records for psychiatric [treatment], which were disclosed to the defense. She had had flashbacks in the past. My understanding is that the incident in 1988 was an anal rape much similar to the incident that happened on July 8th [1999]. My client’s contention is that they were having consensual sex and she consented to [anal intercourse]. And that when he started, she did a flip, basically freaked out, was his term, and that it ended right there. He does give a long description of an incident, which I believe the evidence may show, if given the opportunity to expand upon, [which caused the victim to have] a flashback due to a previous incident, given her psychiatric condition and history.”

In response to the defendant’s argument, the court reserved judgment on the state’s motion in limine. The court indicated, however, that if the defendant’s voluntary statement to the police was put into evidence, the court would grant the motion in limine because the defendant had admitted in his statement that he had restrained the victim and continued anal intercourse after the victim asked him to stop. The court also concluded that evidence of the 1988 sexual assault on the victim was more prejudicial than it was probative of the victim’s consent.

We review the following colloquy to determine whether the defendant’s claim with respect to § 54-86f and hallucinations was preserved at trial. On cross-examination, defense counsel questioned the victim as follows:

“Q: [H]ave you heard voices in the past?
“A: I don’t remember.
“Q: You don’t remember? Were you ever treated or [been] hospitalized for hearing voices?
“A: Not that I recall.
“Q: Who is Jay?”

The state objected to the question about Jay, a name mentioned in the psychiatric records that the court had disclosed to counsel. The court sustained the objection. The court indicated, however, that it would permit defense counsel to further inquire about whether the victim had visual or auditory hallucinations.

Defense counsel continued his cross-examination of the victim:

“Q: [Y]esterday, I asked you if you had in the past any hallucinations. Have you had [auditory] and have you also had visual hallucinations?
“A: Not that I remember.
“Q: Have you ever been treated in the hospital for visual hallucinations?
“A: No, I haven’t.
“Q: Have you ever been diagnosed with posttraumatic stress disorder?”

The state objected to the question concerning post-traumatic stress disorder as it related to the prior sexual assault. The court sustained the objection.

After both sides had rested, the defendant filed a motion to open the evidence to introduce some of the victim’s redacted psychiatric and hospital records. The court granted the defendant’s motion. The defendant recalled the victim to lay the necessary evidentiary foundation for having two of the victim’s redacted hospital records admitted into evidence.* ***** The following colloquy occurred:

“Q: I believe I asked you once before, but I will ask you again today. At any time, do you recall being hospitalized or treated or reporting that you saw or heard hallucinations?
“A: No, I don’t.
“Q: At this time, I would like to show you some documents, starting with this one. I would like you to take a look at that and see if that refreshes your recollection. Does that refresh your recollection?
* * *
“Q: Okay. So, it does not. How about this document? Does that refresh your recollection?
“A: Put it this way. I don’t remember at all having any auditory hallucinations.”

On the basis of our review of the entire transcript and consideration of the parties’ briefs and oral arguments, we conclude that the defendant did not preserve his claim of constitutional deprivation with respect to the victim’s hallucinations and delusions. At trial, when objecting to the state’s motion in limine and attempting to cross-examine the victim with respect to flashbacks, the defendant claimed that the rape shield statute, § 54-86f, deprived him of his constitutional rights. He did not make that constitutional argument -with respect to the issue of hallucinations and delusions. The alleged constitutional issue as stated by the defendant in his brief therefore has not been preserved for appellate review. The issue that the defendant has briefed and argued is an evidentiary one.

Regardless of how the defendant has framed the issue, he cannot clothe an ordinary evidentiary issue in constitutional garb to obtain appellate review. See State v. Jones, 46 Conn. App. 640, 646, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997). Although this court will review an unpreservéd constitutional claim if it satisfies the criteria of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), unpreserved evidentiary claims are not afforded the same protection.

Ordinarily, where a claim is not reviewable, we do not reach the question. Here, however, we will review the defendant’s evidentiary claim because all of the relevant facts were before us as we reviewed the procedural issue concerning preservation. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. . . . In other words, [o]nce an objection has been made and the grounds stated, a party is normally limited on appeal to raising the same objection on the same basis as stated at trial.” (Citation omitted; internal quotation marks omitted.) State v. Trotter, 69 Conn. App. 1, 10-11, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002). Our standard of review of a trial court’s evidentiary rulings is one of abuse of discretion. See State v. Sanchez, 69 Conn. App. 576, 583, 795 A.2d 597 (2002). We will disturb the court’s evidentiary rulings only upon a showing that the ruling resulted in “substantial prejudice or injustice to the defendant.” (Internal quotation marks omitted.) Id., quoting State v. Jackson, 257 Conn. 198, 213, 777 A.2d 591 (2001).

In this case, the court permitted the defendant to cross-examine the victim as to her history of auditory and visual hallucinations three times and opened the evidence to permit the defendant to put two of the victim’s redacted hospital records into evidence. Those records were before the jury and demonstrated that despite her denial, the victim indeed has a psychiatric history of auditory hallucinations. Furthermore, because we have reviewed the victim’s medical records in camera, we conclude that the defendant suffered no prejudice as a result of the court’s ruling, as the victim’s hallucinations were not of a sexual nature.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-86f is commonly known as the rape shield statute. Section 54-86f provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or iqjury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.” (Emphasis added.)

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

       The defendant’s statement was put into evidence. The defendant stated in relevant part that he and the victim had “started making love again, and then I stuck my dick in her ass and she freaked out. She started yelling at me that she didn’t like that. She told me to stop. I didn’t stop right away . . .

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person . . .

       Defense counsel also argued: “[TJhere is a defense because it does go to her competence to, basically, her credibility as far as her ability to relate the incident as it happened on that night, specifically if there are indications that she had this disorder and has had that experience in the past and has had flashbacks in the past also. And it basically shuts down an area of defense which I think is critical to the witness’ credibility and also critical to what happened that night, irrespective of the statement my client gave, because, obviously, he’s going to have to testily and explain certain things of that away. However, shutting this down now precludes the defense that he would be able to raise and also a defense that I think is relevant and probative and does outweigh the prejudice to the victim.”

       In support of the motion to open, defense counsel answered, in relevant part, in response to the court’s request for an offer of proof: “Yes, Your Honor. It is my intention basically, a question I did ask previously to her, the question that I intend to ask today is that, ‘[Do you] ever remember being treated or reporting auditory and, or, visual hallucinations?’ And I believe her answer to one or both of those previous occasions was, ‘I don’t recall,’ or, ‘I don’t remember.’ And I believe in one instance she even said, ‘No.’ I think that was it, but I think the question was, ‘Do you recall?’ I think her answer is fairly consistent with ‘I don’t recall.’ . . . Obviously, if her answer today is ‘yes,’ I do recall having been treated, or I recall [having] been treated for that, I would be precluded from going any further. But if her answers are to remain consistent with what she said last time, I would then offer—there are two documents, which I have redacted, which the court has found under our rules of evidence to be business records. So, I would offer those as full exhibits.”

       The following portions of two of the victim’s redacted psychiatric records were entered into evidence: “[A]uditory hallucinations,” “[t]hc patient reports auditory hallucinations but says at the same time that she can ignore them right now”; “reports that she had auditory hallucinations,” “heard voices real loud,” and “[t]he patient clarifies that she first started hearing the voices approximately in 1993 and that they ‘come and go at different times.’ ”

       “We first note, as we have in a number of other opinions, that [r]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Moreover, our Supreme Court has clearly stated that the right to present a defense does not include the right to offer evidence that is incompetent, irrelevant or otherwise inadmissible. . . . Every evidentiary ruling that denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. [Here] the defendant has put a constitutional tag on a nonconstitutional claim. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” (Citations omitted; internal quotation marks omitted.) State v. Jones, supra, 46 Conn. App. 646.

       Although the defendant framed his appellate claim in constitutional terms, he did not seek Golding review.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. BARBARA WILSON
    (AC 21401)
    Dranginis, Bishop and Hennessy, Js.
    Argued March 28 —
    officially released July 16, 2002

      Marsha Jeanne Lawson, certified legal intern, with whom were Timothy H. Everett and, on the brief, Todd D. Femow, and Daniel Marshall, Eugenie Warner and Peter Goldstone, certified legal interns, for the appellant (defendant).

      Marjorie Allen Dauster, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Catherine Bmnnelly Austin, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Barbara Wilson, appeals from the judgment of conviction, rendered after a jury trial, of breach of the peace in violation of General Statutes § 53U-181, assault in the second degree in violation of General Statutes § 53a-60 (a) (3) and reckless endangerment in the second degree in violation of General Statutes § 53a-64 (a) as a lesser included offense of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). On appeal, the defendant claims that (1) the jury improperly convicted her of breach of the peace on a theory of culpability with which she was not charged and (2) the court prejudiced her case when it improperly instructed the jury that “[t]he state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.” We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2 a.m. on May 16, 1998, the defendant had an argument with Thomas Hickson in the parking lot of a nightclub. The argument continued in a crowded diner that was nearby. Louis Nogueria and several of his friends were among the diner patrons. The defendant screamed and shouted at Hickson, using vulgar language, and pursued him through the diner causing tables and chairs to be overturned and bumped into patrons. The defendant then picked up a heavy glass sugar dispenser and threw it at Hickson. The dispenser missed Hickson and struck Nogueria. Nogueria incurred a deep laceration in his cheekbone, briefly lost consciousness and was brought by ambulance to a hospital, where a plastic surgeon repaired the damage to his face.

Thereafter, the defendant was charged in count one of a multicount information with breach of the peace in violation of § 53a-181 (a) (1) “in that on or about May 16, 1998 at or near 998 Wolcott Road, Waterbury, Connecticut, the said Barbara Wilson with the intent to cause inconvenience, annoyance or alarm or recklessly creating a risk thereof, engaged infighting or in violent tumultuous or threatening behavior in a public place.” (Emphasis added.) Additional facts will be set forth as necessary.

I

On appeal, the defendant claims that the court improperly submitted for the jury’s consideration six uncharged theories of breach of the peace, at least three of which were supported by evidence sufficient to make it reasonably possible that the jury convicted her of breach of the peace on a theory of culpability not included in the information. Specifically, she argues that she is entitled to a reversal of the judgment of conviction as to breach of the peace because a reasonable possibility exists that the jury found her guilty of that offense based on a theory of culpability with which she was not charged. She claims that the court, by reading all seven subdivisions of the breach of the peace statute as part of its jury charge when the state’s long form information charged her with a violation of only § 53a-181 (a) (l), deprived her of her right to be informed of the nature and cause of the accusation against her as guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the constitution of Connecticut.

The following additional facts are relevant to our resolution of that issue. After reading all seven subdivisions of the breach of the peace statute in its jury charge, the court then explained to the jury that it had read the entire statute and that the state “must first prove that the defendant acted with the intent to cause inconvenience, annoyance and alarm. . . . Such acts or conduct must occur in a public place . . . [and] must cause inconvenience, annoyance or alarm, a risk thereof among members of the public . . . [and] the state must prove beyond a reasonable doubt . . . that the defendant engaged in fighting or in violent, tumultuous or threatening behavior . ...” At the conclusion of the court’s charge and outside the presence of the jury, the defendant’s attorney excepted to the court’s reading of the entire statute, stating that the court had included uncharged theories of culpability. The court refused to change its instruction in regard to the provisions of the breach of the peace statute, stating that the definition of breach of the peace that was read to the jury was directly from the statute and that “it [was] appropriate.”

On appeal, the defendant argues that the court should have submitted the case to the jury with instructions restricting its deliberations solely to the theory of criminal culpability actually alleged in the charging document, and that to read the entire statute to the jury was a constitutional error requiring reversal of the judgment of conviction.

She further argues that Connecticut courts have consistently held that a trial court commits constitutional error when it instructs a jury on an uncharged theory of culpability. The defendant relies on our Supreme Court’s language in State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994) (en banc), wherein the court reiterated that “[t]he sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense .... State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987).” (Internal quotation marks omitted.) State v. Chapman, supra, 537-38.

“A defendant is constitutionally entitled to be informed of the nature and cause of the accusation against him. Conn. Const., art. I, § 8; U.S. Const., amend VI. Nothing is more elementary in criminal law than that an accused is required to defend only against the charge alleged. State v. Genova, 141 Conn. 565, 572, 107 A.2d 837 [1954] (opinion of O’Sullivan, J., dissenting).” (Internal quotation marks omitted.) State v. Newton, 8 Conn. App. 528, 532, 513 A.2d 1261 (1986). “[F]or the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court’s charge caused him unfair surprise or prejudiced the preparation of his defense.” State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). We conclude, as the Franko court did, that “the record does not support the defendant’s claim that he was surprised by the disputed instruction or that this instruction prejudiced his defense in any way.” Id.

The defendant was aware that she was charged with the offense of breach of the peace, and the long form information clearly informed her as to the subdivision of § 53a-181 (a) that the state claimed she had violated. She had sufficient notice of the theory of culpability set forth by the state, and there is nothing in the record to indicate that she would have altered her defense in any way had she known prior to trial that the court was going to read the entire breach of the peace statute in its jury charge.

The defendant did not defend against the breach of the peace charge in any manner impheating her right to notice or to prepare a defense. There was little or no attention paid to casting doubt on the violation of the breach of the peace statute, as the evidence in the record clearly demonstrated that the defendant had engaged in threatening behavior in a public place. Rather, the defense case-in-chief concentrated on addressing the other counts in the multicount information. The focus of the defense was to cast doubt that the injury was serious, that the sugar container was a dangerous instrument and that the evidence proved beyond a reasonable doubt that the defendant had intended to cause serious physical injury.

Initially, we set forth the standard of review. In our examination of whether the jury was misled, the “charge to the jury will not be critically dissected for the purpose of discovering possible inaccuracies of statements, but the charge is to be considered, rather, as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. ... To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge.” (Citation omitted; internal quotation marks omitted.) State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983). “We have disapproved the practice of reading an entire statute to a jury where under the pleadings or the evidence only a portion of it is applicable. . . . While the court may instruct in the exact language of the statute, it should not do so where the exact statutory language might mislead the jury .... The test we must apply, therefore, is whether it is reasonably possible that the jury [was] misled.” (Citations omitted; internal quotation marks omitted.) Id., 501-502. Thus, on appeal we must determine whether the jury instructions possibly misled the jury.

We are convinced that the reading of the entire breach of the peace statute, including parts that obviously had no connection with the charges in the case at hand, did not mislead the jury. A careful reading of the record shows that the instruction to the jury focused on the charge as set forth in the information and as contained in subdivision (1) of § 53a-181 (a). The court, during its charge, informed the jury that it had read the entire statute and then proceeded to instruct the jury as to the elements of subdivision (1), which are stated in the information. In its instructions as to the essential elements that the jury would have to find to convict the defendant of the offense as charged, the court made no reference to subdivisions of § 53a-181 (a) other than the one contained in the information. See State v. Carter, 189 Conn. 611, 628-31, 458 A.2d 369 (1983).

Additionally, the jurors had the charged subdivision read to them during jury selection and at the commencement of trial, and had with them in the deliberations room the information, which referred to subdivision (1) of the breach of the peace statute. Accordingly, there is no reasonable possibility, given the circumstances here, that in returning its verdict the jury was misled by the court’s reading of the entire statute.

II

The defendant next claims that it is reasonably possible that the court misled the jury about the presumption of innocence when it instructed that “[t]he state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.” Specifically, the defendant argues that the contested language could have misled the jury to believe that the court was suggesting that the assistant state’s attorney would not have ardently pressed for conviction unless she truly believed that the defendant was guilty and not an innocent person entitled to acquittal. The result, the defendant claims, is that “this sort of an instruction is essentially putting the court’s imprimatur on the state’s case . . . .”

Connecticut courts have found that wording very similar to the statement under attack in this case does not violate a defendant’s constitutional rights and, thus, does not require reversal of a judgment of conviction.

Initially, we reiterate our standard of review. “It is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

In support of her position, the defendant cites State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (en banc), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999), wherein our Supreme Court stated that “pursuant to our supervisory authority over the administration of justice, [we] direct our trial courts to refrain from using the challenged language in future cases . . . .” The defendant in Schiappa had claimed that the trial court improperly instructed the jury on reasonable doubt in violation of her fifth amendment right to due process and sixth amendment right to a jury trial. Id., 167-68. Specifically, she argued “that the trial court’s charge to the jury that the principle requiring the state to establish guilt beyond a reasonable doubt is a ‘rule of law . . . made to protect the innocent and not the guilty’ [that] impermissibly undermined the presumption of innocence, thereby diluting the state’s burden of proof.” Id., 168. Although the Supreme Court in Schi-appa noted its disapproval of the challenged language; id.; it nevertheless found that “the charge, considered as a whole, presents the case to the jury so that no injustice will result”; (internal quotation marks omitted) id., 171; and rejected the defendant’s constitutional claim. As was the case in Schiappa, the defendant in the present case has not proven a constitutional violation.

In the case at hand, the court did not use the language found in Schiappa but instructed the jury as follows: “The state is as much concerned in having an innocent person acquitted as in having a guilty person convicted. ” The defendant claims that the challenged jury instruction suggested that the state would not have pursued the prosecution unless it had a good faith basis for believing that the person charged was guilty, thereby diluting the state’s burden of proof in that the instruction may result in the “possibility that a juror . . . might be given to understand from it that only innocent persons should be acquitted . . . .” State v. Francis, 228 Conn. 118, 136 n.19, 635 A.2d 762 (1993).

In State v. Allen, 28 Conn. App. 81, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992), we rejected a challenge to a similar instruction that included the phrase: “The state does not desire the conviction of innocent people or of any person whose guilt upon the evidence is in the realm of reasonable doubt.” (Internal quotation marks omitted.) Id., 84. We stated in that case that the trial court did not instruct that the state prosecutes only guilty people, but rather that the state requires the conviction of only the guilty. Id., 85.

As we did in Allen, we conclude in this case, after reviewing the charge as a whole, that the court thoroughly informed the jury of the defendant’s presumed innocence and that the state bore the burden of proving the defendant’s guilt beyond a reasonable doubt.

Although the language challenged here is not the same as that challenged in Allen or Schiappa, the rationale of those cases can be applied here. In this case, the court instructed the jury that “at the moment when [the defendant] was presented before you for trial, she stood before you free of any bias, prejudice or burden arising from her position as the accused. That nothing you might know or guess about her past should be considered by you at all. Insofar as you are concerned, she was then innocent and she remains innocent until such time as the evidence and matters produced here, right here in this courtroom, and in the course of this trial satisfy you that she is guilty.

“I remind you that the piece of paper containing the charge, the information, is not evidence. But it is merely the formal manner of accusing a person of a crime. You must not consider it as any evidence of guilt or draw any inference of guilt from the fact that the accused has been arrested and charged. . . . The burden then is on the state to prove the accused guilty of the crimes with which she is charged, and she, the accused, does not have to prove her innocence.”

Furthermore, the court, in clear and legally correct terms repeatedly instructed the jury regarding the presumption of innocence and the state’s burden of establishing guilt beyond a reasonable doubt. We note, however, that the challenged language in this case, viewed in isolation, possibly is susceptible of an unacceptable interpretation. Because of that we suggest, in keeping with our Supreme Court’s direction in Schi-appa, that this specific language be omitted from all jury instructions in the future. We are convinced, however, after our thorough review of the jury instructions, that the court adequately informed the jury that it could draw no inference of the defendant’s guilt from the fact that she had been arrested and charged, and that the state had to prove beyond a reasonable doubt that the defendant committed the offenses with which she was charged. We conclude that there is no reasonable possibility that the jury could have been misled by the instruction given by the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or (2) assaults or strikes another; or (3) threatens to commit any crime against another person or his property; or (4) publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person; or (5) in a public place, uses abusive or obscene language or makes an obscene gesture; or (6) creates a public and hazardous or physically offensive condition by any act which he is not licensed or privileged to do . . .

       The remaining counts in the multicount information are not at issue in this appeal.

       Specifically, the defendant claims that there was evidence presented at trial supporting the uncharged theories of culpability for breach of the peace in subdivision (2) of General Statutes § 53a-181 (a) (“assaults or strikes another'’); in subdivision (5) (“in a public place, uses abusive or obscene language or makes an obscene gesture”); and in subdivision (6) (“creates a public and hazardous or physically offensive condition by any act which he is not licensed or privileged to do”). The defendant claims that it is reasonably possible that the court’s instruction misled the jury to convict her on the basis of evidence that supported those theories of culpability.

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . . .”

       The defendant invokes both the United States constitution and the constitution of the state of Connecticut in support of her claims. She has not, however, provided any independent analysis of the state constitutional claims, and, therefore, we decline to review them. See State v. Davis, 51 Conn. App. 171, 176 n.10, 721 A.2d 146 (1998).
      The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against Mm; to have compulsory process for obtaining witnesses in Ms favor, and to have the assistance of counsel for Ms defense.”
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       In a written statement to the police, the defendant stated that Hickson had punched her, and that she chased him into a diner and threw a sugar shaker at him.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. SHERMAN BROWN
    (AC 21667)
    Mihalakos, Dranginis and Flynn, Js.

      Argued May 2 —
    officially released July 16, 2002

      Michael O. Sheehan, special public defender, with whom was George Kouros, law student intern, for the appellant (defendant).

      Thomas M. DeLillo, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Sherman Brown, appeals from the judgment of conviction of assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59 (a) (5), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (5), and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. On appeal, the defendant claims that prosecutorial misconduct during closing argument deprived him of his right to a fair trial and, therefore, his conviction should be reversed. Although we agree with the defendant that some of the prosecutor’s conduct was improper, we conclude that none of the misconduct caused substantial prejudice to the defendant such that he was deprived of his right to a fair trial. We, therefore, affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The defendant and the gang with which he was associated were selling drugs from a “white house” located on Saltonstall Street in New Haven. Another individual, Clifford Portee, and the gang with which he associated, frequently sold drugs in front of the residence located at 108-110 Poplar Street, which was located just around the corner from Saltonstall Street. On or about June 4, 1996, shots were fired at the “white house” on Saltonstall Street. The defendant and his gang assumed that Portee and his gang from Poplar Street were responsible for that shooting.

On June 5, 1996, at about 5 p.m., an argument broke out between the defendant and the Saltonstall Street gang, and Portee and the Poplar Street gang concerning the shooting that had occurred the previous day. During the course of that argument, some member of the defendant’s gang threatened Portee and his Poplar Street gang that someone was going to pay for shooting at the “white house.” At about 9 p.m. that same evening, Miranda Reed was walking along Poplar1 Street toward her home on Saltonstall Street. She saw Portee, who was sitting on the porch of the 108-110 Poplar Street residence, and briefly spoke with him. As Reed turned left at the comer of Poplar Street and proceeded onto Saltonstall, she saw the defendant and another individual, who Reed could not identify, exit the “white house.” The defendant was carrying a pistol in his right hand as he and the other individual ran around the comer and headed onto Poplar Street.

At about that same time, Santa Figueroa and her eighteen month old son were visiting Figueroa’s Mend, Estacy Reguelmy, who lived at 108-110 Poplar Street. The three were in the living room watching a movie. The living room was located in the front of the house. Two of the living room windows faced Poplar Street. Figueroa was holding her son in her arms while sitting on the couch, which was located to the left of the windows. At about 9:15 p.m., several shots rang out. One bullet struck a car that was parked about thirty feet south of 108-110 Poplar Street. The remainder of the bullets struck various parts of the house at 108-110 Poplar Street. Two bullets stmck the front door and one stuck an interior hallway door. One bullet penetrated the front of the house below the living room windows, and struck Figueroa’s eighteen month old son in the leg. The bullet exited the boy’s leg and hit the television, shattering its screen. Shortly thereafter, Reguelmy opened the door to her apartment so she could run next door to get Figueroa’s mother and found Portee in the hallway. Reguelmy, earlier in the evening, had asked Portee to move away from her front porch. Portee appeared nervous but was unharmed. He entered Reguelmy’s home and attempted to calm Figueroa, who was hysterical.

Meanwhile, Reed, who had heard gunshots coming from the direction of Poplar Street, began to run from her home on Saltonstall Street toward Poplar. As she headed in that direction, she saw the defendant and another individual running away from Poplar Street where the gunshots had come from, and toward the “white house” on Saltonstall Street. On June 6, 1996, Reed gave two tape-recorded statements to the police in which she implicated the defendant as the individual she had seen running with the gun. Also, in June, 1996, the defendant was in possession of a gun, which he attempted to hide at his girlfriend’s apartment.

Sometime after the shooting, the defendant approached Figueroa, the mother of the child who was shot, and told her that if he had known that there was a child in the house on the night of June 5, 1996, “it wouldn’t have went on.” The defendant also told Figueroa that if her son needed anything he would “be there.” He also offered to buy Figueroa a new television.

On June 10, 1996, the defendant was arrested and charged with assault in the first degree in violation of §§ 53a-8 and 53a-59 (a) (5), conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (5), and criminal possession of a pistol or revolver in violation of § 53a-217c. He was convicted of all three counts. He was sentenced to a total effective sentence of twenty years, execution suspended after twelve years, with five years probation on all charges. This appeal followed. Additional facts will be set forth as necessary.

At the outset, we note that the defendant’s claim of prosecutorial misconduct was not preserved at trial. The defendant now seeks review of this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or in the alternative, under Practice Book § 60-5, which provides for plain error review. The defendant also asserts that his prosecutorial misconduct claim should be reviewed pursuant to this court’s supervisory authority over the administration of justice.

Where the defendant has failed to object to the alleged prosecutorial misconduct at trial, on appeal he may prevail on his claim under Golding only if he satisfies all four prongs of the test set forth in that case. We conclude that in the present case, the defendant’s claim fails under the third prong of Golding because he has failed to demonstrate that a constitutional violation clearly existed and that he was clearly deprived of his right to a fair trial.

Our standard of review of a claim of prosecutorial misconduct is well settled. “Our Supreme Court has previously acknowledged that prosecutorial misconduct can occur in the course of closing argument. . . . It is well settled, however, that a defendant may not prevail under Golding . . . unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial . . . .” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 656, 783 A.2d 511 (2001). “To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 699-700, 793 A.2d 226 (2002).

In the present case, the defendant’s argument is based on three separate categories of proscribed conduct. He claims that during closing argument, the prosecutor (1) improperly attacked the integrity and institutional role of defense counsel, (2) improperly and frequently stated his personal beliefs regarding the case, and (3) improperly claimed that defense counsel believed that the defendant was guilty. The defendant maintains that the cumulative impact of these improper comments violated his right to a fair trial. He further maintains that our Supreme Court’s recent decisions in State v. Singh, supra, 259 Conn. 693, and this court’s recent decisions in State v. Moore, 69 Conn. App. 117, 795 A.2d 563, cert. denied, 260 Conn. 941, 835 A.2d 59 (2002), and State v. Thompson, 69 Conn. App. 299, 797 A.2d 539 (2002), mandate reversal of his conviction. We disagree. We address the defendant’s claims of misconduct seriatim.

The defendant first claims that during closing argument, the prosecutor improperly attacked the integrity and institutional role of defense counsel. He contends that certain of the prosecutor’s comments implied that all defense counsel, and his defense counsel in particular, are unethical and deceptive. He further contends that the prosecutor’s remarks that defense counsel was using a “smoke screen” and “trying to fool the jury” were designed to undercut the defense by portraying defense counsel’s presentation of the case as a series of tricks, and that the remarks were designed to appeal to the emotions and prejudices of the jury.

The following additional facts are relevant to our disposition of this issue. During closing argument, defense counsel argued that although the evidence tended to show that the defendant was associated with a group that was selling drugs on Saltonstall Street, the jury should not convict the defendant of the assault and conspiracy charges on the basis of the fact that he was associated with a gang or that he may have been selling drugs. In rebuttal, the prosecutor made the following remarks to the jury: “[D]on’t be fooled by this, ladies and gentlemen. That is why defense will stand up here like [defense counsel] just did and admit to you certain obvious and uncontested things like was done in this case. . . . [T]he impression that [defense counsel] would like to create with you is that, well, it is kind of empathetic, the defense admits this stuff and [defense counsel] said [the prosecutor] is a good guy, this stuff really must—the rest of the stuff must be questionable because why would he be admitting all the other stuff. So, therefore, fall into that trap and [say] that the rest of the stuff is not really proven because he is admitting to stuff that really must have been proven. Don’t fall for that. That is a smoke screen employed by defense attorneys at any trial. [Defense counsel] has been doing this a long time.” (Emphasis added.)

The prosecutor also asked the jury not to “be fooled” by either the defense theory that there may have been more than a single shooter or its theory that because there were shots fired into a nearby car and sprayed across the front of the house that the defendant did not have the requisite intent to commit assault in the first degree, but perhaps only some lesser included offense, namely, assault in the third degree. Finally, the prosecutor argued that defense counsel had used phrases such as “this is not a mystery” and this case is “mish-mashing” because “[defense counsel] has been doing this for a very long time and, as any defense attorney would do, he is trying to convince you, basically, ladies and gentlemen, that this is too hard for you to figure out.” (Emphasis added.)

“While a prosecutor may argue the state’s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Furthermore, [t]he prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel.” (Citation omitted; internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 357-58, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). “[W]e must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) Id., 358.

“In determining whether prosecutorial misconduct amounts to a denial of due process, we consider whether the conduct was improper, and, if so, we next determine whether the conduct caused substantial prejudice to the defendant. . . . 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 prosecu-torial misconduct.” (Internal quotation marks omitted.) State v. Thompson, supra, 69 Conn. App. 304.

We now turn to the first step in our analysis of whether the defendant was deprived of his right to a fair trial by first determining whether the challenged statements made by the prosecutor were improper. If they were not improper, there is no need to address the second step of analysis concerning whether substantial prejudice resulted to the defendant.

We first consider remarks that were clearly improper and should not have been made or permitted to be made in a Connecticut courtroom. It was permissible for the prosecution to point out that simply because the defense counsel had admitted that his client had been associated with a street gang of drug peddlers, the jury should not infer that the defendant was not guilty of the assault with which he was charged. It was not, however, proper for the prosecutor to assert that this was a “smoke screen” that defense counsel and all defense attorneys employ as some kind of usual tactic designed to delude juries. First, there was no evidence of this. Second, even if such evidence had been offered, it was not material because it did not tend to prove the guilt or innocence of the accused.

Having concluded that the prosecutor’s conduct was improper, we next turn to the second step of our analysis, namely, whether the misconduct caused the defendant substantial prejudice. In State v. Singh, supra, 259 Conn. 700-701, our Supreme Court focused on several factors to be considered in determining whether prose-cutorial misconduct was so severe that it caused substantial prejudice to the defendant, thereby amounting to a denial of due process. Those factors include (1) the extent to which the misconduct was invited by defense conduct or argument, (2) the severity of the misconduct, (3) the frequency of the misconduct, (4) the centrality of the misconduct to the critical issues in the case, (5) the strength of the curative measures adopted and (6) the strength of the state’s case. Id.

We now apply those Singh factors to the misconduct here. We address the last Singh factor first because our observations concerning the strength of the state’s case, which is a strong factor militating against reversal, apply to all three categories of the claimed misconduct.

Factually, the state had a very strong case. Although there were no eyewitnesses to the shooting itself, there was other strong evidence of guilt, including eyewitness testimony that established that Portee was sitting at 108-110 Poplar Street shortly before the shooting, and that the defendant was headed in that direction with a gun in his hand just seconds before the shooting occurred and headed away from that direction just seconds after the shots were fired. Furthermore, the jury had before it evidence of the fact that the defendant had a motive to shoot Portee, a rival drug dealer with whom the defendant’s gang was feuding. It also had before it the defendant’s own statements to Figueroa, i.e., that if he knew that there was a child in the house, “it,” meaning the shooting, would not have occurred, and evidence of the fact that the defendant had attempted to hide a gun at his girlfriend’s apartment near the time of the shooting, both of which the jury could have reasonably interpreted as consistent with the guilt of the defendant.

We now turn to the other Singh factors as they apply to the first category of misconduct. The prosecutor’s comments relating to the tactics of defense counsel were, to a great extent, invited by the defense. On numerous occasions during his closing, defense counsel improperly mentioned tactics that all prosecutors, and the prosecutor in this case in particular, allegedly employ in all criminal cases. Therefore, after viewing the prosecutor’s remarks in the context in which they were made, as they must be, we conclude that those comments did not deny the defendant his right to a fair trial. See State v. Copas, 252 Conn. 318, 340, 746 A.2d 761 (2000). The prosecutor’s comments were severe. He insinuated that all defense counsel are charlatans. The comments did not, however, occur in a vacuum, but in response to equally irrelevant and improper defense arguments. See footnote 3. The comments were infrequent; they occurred only during the rebuttal portion of the prosecutor’s closing argument. The comments were not central to the issues in the case, which were whether the defendant had conspired with another individual and whether he fired the shots that struck the eighteen month old victim. We also note that the defendant did not object to the challenged remarks at trial or request that a curative instruction aimed at those remarks be given by the court. Furthermore, although it was not requested to do so, the court, in its charge, specifically instructed the jury: “You must not be influenced by any personal likes or opinions or prejudices or sympathy. Opinions of either counsel as stated to you in their arguments are in no way binding upon you in your determination of the facts, although you should weigh and consider the arguments of counsel as to the facts. It is your recollection of the evidence that controls. Not mine, not that of the attorneys.” We have no reason to believe that the jury disregarded those instructions.

After applying the Singh factors to the defendant’s first claim of prosecutorial misconduct, we cannot say that the prosecutorial misconduct at issue in this claim caused the defendant to suffer substantial prejudice such that he was deprived of his right to a fair trial.

We next turn to the defendant’s second claim of pros-ecutorial misconduct. He contends that during closing argument the state’s attorney improperly and frequently stated his personal opinion about the guilt of the defendant and the credibility of the witnesses. He further contends that certain of the prosecutor’s statements were made to appeal to the passions and prejudices of the jury. Again, we first determine whether the challenged conduct was improper and, if so, we then determine whether the misconduct caused the defendant substantial prejudice.

The following additional facts are necessary to our resolution of this claim. At the outset, we note that the defendant points us to no place in the record where the prosecutor improperly expressed his personal opinion about the credibility of witnesses. The prosecutor did point out, as he was entitled to do, the strength of his own case and the weakness of his opponent’s case, based on inconsistencies in the testimony of the witnesses. Additionally, the prosecutor did, in several instances during closing argument, state his personal view as to what he believed the evidence showed. For example, during his initial closing argument the prosecutor stated: “I think the evidence shows that Mr. Portee had just been the target of a shooting orchestrated and carried out by the defendant . . . .” The most egregious of those comments occurred during rebuttal when the prosecutor stated: “I disagree . . . vehemently with [the defense’s argument that if the defendant was guilty at all, he was guilty of assault in the third degree] because I think it is assault, first degree . . . .” (Emphasis added.) Additionally, although Reed had given the police two tape-recorded statements prior to trial in which she implicated the defendant as a gun carrier running toward the location of the shooting seconds before it occurred, Reed gave contradictory testimony at trial. Reed’s prior statements were, thereafter, admitted into evidence pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

During closing argument, defense counsel argued that whenever a witness gives a statement to the police and then changes his or her statement at trial, the prosecution will inevitably imply that the change is due to the fact that the witness was threatened or coerced to contradict the prior statement when he or she testifies at trial. In response, the prosecutor argued that witnesses sometimes change their testimony because of fear and intimidation or because of some misguided code of silence. He argued further: “I am not saying I particularly relish having to have her come in here and put her under subpoena and do that, okay, but that is what we are here for. You can’t just let someone escape justice, ladies and gentlemen, because there may be some reluctant witnesses from time to time. ” (Emphasis added.)

“It is well settled that, in addressing the jury, [c]ounsel must be allowed a generous latitude in argument .... The parameters of the term zealous advocacy are also well settled. The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Citations omitted; internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 712-13. Furthermore, “the state must avoid arguments which are calculated to influence the passions or prejudices of the jury, or which would have the effect of diverting the jury’s attention from their duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Chasse, supra, 51 Conn. App. 357-58.

The rule is clear that it is improper for the prosecutor to state his personal opinions about the case to the jury. State v. Dillard, 66 Conn. App. 238, 252-53, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001); see also Rules of Professional Conduct 3.4 (“[a] lawyer shall not ... (5) state a personal opinion as to the justness of a cause, the credibility of a witness ... or the guilt or innocence of an accused”). It is also improper for the prosecutor to align himself or herself with the side of justice, thereby implying that the defense is advocating for what is unjust. These types of statements create the risk that the jury’s attention will be diverted away from its own opinion about the strength of the evidence and toward the prosecutor’s view, and invite the jury to decide the case on the basis of passion and prejudice, rather than on the evidence. See State v. Dillard, supra, 252-53; see also Rules of Professional Conduct 3.8, commentary (“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.”).

Because we have concluded that the prosecutor’s conduct was improper, we must now turn to the second step of our analysis, namely, whether the misconduct deprived the defendant of a fair trial. In doing so, we again conclude that when viewed in light of the Singh factors, the misconduct was not so egregious as to substantially prejudice the defendant, thereby infringing on his right to a fair trial. First, defense counsel invited some of the comments when he advised the jury of the inevitability that the prosecution would argue that a witness changed his or her testimony at trial because of fear. Second, for the most part, the misconduct was not severe. Although use of the prefatory phrase, “I think,” may have been improper because use of the pronoun “I” increases the chance that argument will deteriorate into expressions of personal opinion; Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 401, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999); use of the word “I” is part of our everyday parlance and although it should be avoided, nonetheless, because of established speech patterns, it cannot always easily be eliminated completely from extemporaneous elocution. We do, however, conclude that the prosecutor’s remark about not allowing the defendant “to escape justice” because of a reluctant witness was severe. It long has been recognized that the special role of prosecutor “must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider.” (Internal quotation marks omitted.) State v. Alexander, 254 Conn. 290, 302, 755 A.2d 868 (2000). However, our evaluation of the third Singh factor, the frequency of the misconduct, limits its effect. The prosecutor’s remarks were infrequent and were limited to closing argument. Fourth, although some of the remarks were central to the ultimate issue of guilt or innocence of the defendant, we observe in evaluating the fifth Singh prong, that the defense did not object to any of the misconduct or seek a curative jury instruction at trial. Accordingly, we conclude that this category of misconduct was not so egregious that it violated the defendant’s right to a fair trial.

We now turn to the defendant’s third and final claim of prosecutorial misconduct. He contends that during closing argument the prosecutor improperly stated that defense counsel believed that the defendant was guilty. This claim is without merit.

During closing argument, defense counsel explained that bullets were sprayed over the entire house where the victim was shot, with some bullets landing in a nearby car and in areas of the house far removed from the porch where the alleged intended victim, Portee, was sitting. Defense counsel stated: “Honestly, if there was a guy . . . that was that close to somebody sitting on the porch ... I would submit to you [he] would be dead if that is what they wanted to do, or at least struck by a bullet.” And later, he stated: “This case, I think, other than all the facts . . . there is a motive and the drug dealers and people are going around which is probably true, and the defendant may have been part of that.” Finally, near the end of his argument, defense counsel stated: “In this case, you also will be considering a lesser included offense of assault . . . assault in the third degree. . . . Now, every time I mention a lesser included offense, the prosecutor says [defense counsel] would like you to believe, number one, he didn’t do it. But just in case you think he did, convict him of the lesser crime. That is not my point. ” (Emphasis added.)

In rebuttal, the prosecutor argued as follows: “Now, I want to go back to what [defense counsel] had talked about here .... Bad shot. The defendant was a bad shot. Don’t be fooled by that. The reason . . . that was said is this . . . the defendant apparently knowing that the evidence shows reasonably the guilt of [the defendant] mentions stuff about a bad shot because his idea of a lesser offense, which he talked about, he wants to have come into play.” (Emphasis added.)

Contrary to the defendant’s assertions, we conclude that this comment cannot be fairly characterized as one in which the prosecutor argued that defense counsel believed the defendant was guilty. We conclude, instead, that the prosecutor was entitled to rebut the defendant’s theoiy of the case with the state’s theory of the case. The jury could reasonably have concluded that the prosecutor was simply attempting to counter defense counsel’s argument that the jury should consider convicting the defendant of the lesser included defense simply because the bullets he fired missed his intended victim.

Even if we were to assume that this comment was improper, we would nonetheless conclude that it did not substantially prejudice the defendant. The comment was invited by defense counsel’s own improper remarks about what prosecutors inevitably do when a lesser included offense is mentioned. It was neither severe nor frequent; it was said but one time. Additionally, although the remark related to a central issue in the case, namely, whether the defendant had the requisite intent to commit assault in the first degree, the defense did not object to the argument or seek a curative instruction.

Finally, we address whether the cumulative impact of the improper conduct during argument mandates reversal of the defendant’s conviction. We conclude that it does not. The challenged remarks of the prosecutor, to the extent that they were inappropriate, were at times invited by counsel, and although some were severe, they were infrequent, confined to argument and did not evidence a pattern of misconduct sufficient to deprive the defendant of his right to a fair trial. We also conclude that the challenged remarks, for the most part, did not relate to the central issues in the case and that the defendant did not seek a curative instruction. The court’s general instruction that the jury must decide the case on the basis of its recollection of the evidence before it and that the arguments of counsel were not binding on the jury’s determination of the facts was sufficient to cure the harm caused by the remarks at issue. Finally, for all the reasons we have cited previously, the state had a strong case against the defendant. Accordingly, we conclude that the cumulative effect of the misconduct at issue was not so egregious as to constitute an infringement of the defendant’s right to a fair trial.

Nor does the misconduct in the present case mandate reversal under State v. Singh, supra, 259 Conn. 693, State v. Moore, supra, 69 Conn. App. 117, or State v. Thompson, supra, 69 Conn. App. 299. The extent of the impropriety here does not rise to level of the misconduct that occurred in Singh and Thompson. See State v. Singh, supra, 723-25 (cumulative effect of four instances of improper conduct deprived defendant of fair trial in that state’s case was not strong and all improprieties directly related to critical and only disputed issue in case); State v. Thompson, supra, 303-14 (where evidence of guilt not overwhelming, religiously charged comments during closing argument, which were repetitive and central to issue of credibility, inter alia, stating some witnesses “ ‘have reserved a place in hell for themselves’ ” constituted egregious misconduct that so infected trial with unfairness as to result in denial of due process). Furthermore, we fail to see how State v. Moore, supra, 117, supports the defendant’s argument because Moore held that the defendant in that case had failed to sustain his burden of proving that the prosecutor’s misconduct was substantially prejudicial in the context of the entire trial so as to deny the defendant his rights to due process and to a fair trial. Id., 125-28.

For all of these reasons, we conclude that the defendant’s claim of prosecutorial misconduct fails under the third prong of Golding because he has failed to demonstrate that a constitutional violation clearly existed and clearly deprived him of his right to a fair trial.

Additionally, we conclude that these claims do not warrant plain error review. “It is well settled . . . that a defendant may not prevail under . . . the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial.” State v. Satchwell, 244 Conn. 547, 564, 710 A.2d 1348 (1998). In the present case, the defendant has failed to prove that, in the context of the trial as a whole, the prosecutor engaged in a pattern of egregious misconduct that was so pervasive that it violated the defendant’s right to a fair trial. Likewise, exercise of the court’s supervisory authority is not warranted here.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant elected a trial by jury on counts one and two, and a trial to the court, held contemporaneously with the jury trial, on count three.

       We do not repeat the entire four prong test first set out in Golding because it has been repeated several hundred times in later cases that have followed Golding.

       For example, during closing, defense counsel, in an attempt to explain why certain witnesses testified in a manner that was contradictory to their pretrial statements, argued: “One of the things that [the prosecutor], and it is commonly done and it is commonly true, tries to explain somebody’s .... But one of the things that is often said is this, well, somebody comes in and they tell a different story than they did to the police at the time . . . .” Later, he argued: “Whenever any witness changes their story, it seems to be that the implication is made and it is being made here that somebody threatened them or told them, don’t show up, or I will buy you something if you don’t say what you were supposed to say.” On another occasion during closing argument, defense counsel argued: “Now, every time I mention a lesser included offense, the prosecutor says, [defense counsel] would like you to believe, number one, he didn’t do it.”

       During rebuttal, regarding Reed’s contradictory statements, the prosecutor argued: “I think that is pretty important. I think that is one of the reasons why you can choose to credit for all the other reasons in addition I have told you about, what she told the police in June of 1996.” (Emphasis added.)

       The Whelan rule allows the “substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination." State v. Whelan, supra, 200 Conn. 753.