The opinion
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STATE OF CONNECTICUT v. DANIEL G.*
(AC 33653)
DiPentima, C. J., and Beach and McDonald, Js.
Argued November 27, 2012—officially released January 21, 2014
(Appeal from Superior Court, judicial district of New
London, geographical area number ten, A. Hadden, J.)
Jon L. Schoenhorn, with whom, on the brief, was
Irene J. Kim, certified legal intern, for the appellant
(defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Michael L. Regan, state’s
attorney, and Rafael I. Bustamante, assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Daniel G., appeals
from the judgment of conviction, rendered after a jury
trial, of increasing the speed of a motor vehicle in an
attempt to escape or elude a police officer in violation
of General Statutes § 14-223 (b) and interfering with a
police officer in violation of General Statutes § 53a-
167a. On appeal, the defendant claims that (1) the evi-
dence was insufficient to support his conviction under
§ 14-223 (b); (2) § 14-223 (b) is unconstitutionally vague
as applied to the facts of this case; (3) the trial court
improperly failed to charge the jury on two theories of
defense; and (4) the defendant was deprived of the right
to a fair trial as a result of prosecutorial impropriety.
We are not persuaded and, accordingly, affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. On April 23, 2009, at approximately 4:45 p.m.,
New London police Officer Deana Nott responded to
a motor vehicle accident and drove her police cruiser
to a CVS parking lot located on Jefferson Street. After
speaking with the individuals involved in the accident,
including Dustin Colburn, Nott returned to her cruiser
to complete some paperwork. Nott noticed a white van
pull into a parking space in the CVS parking lot and
saw the defendant exit with a small child. A few
moments later, while approaching Colburn, the defen-
dant commented on Nott’s abilities as a police officer.
The defendant asked Colburn if Nott was issuing Col-
burn a ‘‘ticket . . . .’’ The defendant then said that Nott
was ‘‘[o]n the wrong end of a lawsuit’’ and asked Col-
burn for his name and telephone number. At this point,
Nott exited her cruiser and instructed the defendant to
‘‘step away’’ several times. The defendant ignored Nott’s
instructions and continued his comments about her.
Nott determined that she could not complete her inves-
tigation of the motor vehicle accident as a result of the
defendant’s actions, and requested assistance from her
fellow police officers. Upon hearing the response to
Nott’s request, the defendant entered his van and
departed from the CVS parking lot onto Jefferson Street.
When requesting assistance, Nott had spoken with
Todd Bergeson, a sergeant in the New London Police
Department and the acting shift supervisor. Nott asked
Bergeson to initiate a motor vehicle stop and issue the
defendant ‘‘a ticket for interfering or . . . creating a
disturbance.’’ Bergeson was located nearby at a funeral
home. Bergeson observed the white van exiting from
the CVS parking lot and followed it, turning on his
vehicle’s overhead lights and police siren. The defen-
dant proceeded up Wall Street while Bergeson was
directly behind him with the overhead lights and police
siren turned on. The defendant turned onto Summer
Street, then Redden Avenue, then Colman Street and
into his residence. Bergeson parked his cruiser at the
front of the residence and proceeded to the rear of the
residence on foot. Bergeson observed the defendant
and his daughter in the van. He ordered the defendant
to exit the van and informed him that he was under
arrest. At some point, the defendant began to exit the
van, and Bergeson pointed his Taser at the defendant.
The defendant returned to the interior of the van, shut-
ting and locking the door. The defendant placed a tele-
phone call to the police dispatcher, requesting to speak
to either a captain or lieutenant, and claiming that he
and his daughter were being threatened by the police.
The dispatcher informed the defendant that Bergeson
was acting lieutenant. The defendant then exited the
van and was taken into custody without further
incident.
In an amended substitute information, the defendant
was charged with risk of injury to a child in violation
of General Statutes § 53-21 (a) (1), increasing speed in
an attempt to escape or elude a police officer in viola-
tion of § 14-223 (b) and two counts of interfering with
an officer in violation of § 53a-167a. Following the pre-
sentation of the state’s case, the defendant moved for
a judgment of acquittal as to all four counts. Count one
of the amended substitute information alleged that the
defendant had obstructed and hindered Nott in the per-
formance of her duties in the CVS parking lot ‘‘by repeat-
edly yelling at the parties to a motor vehicle crash and
interfering with . . . Nott’s investigation of the acci-
dent in which the defendant was not involved . . . .’’
The court granted the defendant’s motion for a judg-
ment of acquittal with respect to count one. Referring
to our Supreme Court’s decision in State v. Williams,
205 Conn. 456, 473, 534 A.2d 230 (1987),1 the court ruled:
‘‘When, in fact, one is dealing with [a] first amendment
question and the right of expression, the interfering
statute is restricted to what is known as fighting words,
either words directed at the officer or to those in the
area such that they are—their very nature would require
or ordinarily cause one to react in a negative fashion, in
fact, one of violence. That is, clearly, not what happened
here. As for the verbal exchange, it is correct that the
verbal exchange was not even with [Nott], according
to the evidence that has been presented. As far as the
claim that the verbal exchange interfered with [Nott’s]
ability, I see no evidence of that. I see no specific testi-
mony that would indicate that the conversation
between the witness and the defendant interfered, pre-
vented [Nott], or even delayed [Nott] in any way. There
may have been a subsequent argument with [Nott]; but,
again, citing Williams, that is not sufficient for a charge
of interfering with a police officer.’’ The court denied
the remainder of the defendant’s motion.
Following the conclusion of the trial, the jury found
the defendant not guilty of risk of injury, guilty of
attempting to escape or elude a police officer and guilty
of interfering with an officer. The interfering with an
officer count was based on the defendant’s locking the
van door and preventing Bergeson from arresting him
following the police pursuit. The court denied the defen-
dant’s postverdict motions and rendered judgment in
accordance with the jury’s verdict. The court sentenced
the defendant to one year of incarceration, execution
suspended, two years of probation and a $500 fine. This
appeal followed.
I
The defendant first claims that the evidence was
insufficient to support his conviction of attempting to
escape or elude a police officer. Specifically, he argues
that a video of the pursuit, as captured by a dashboard
camera in Bergeson’s vehicle, ‘‘unequivocally demon-
strated that the defendant never increased his speed or
tried to elude Bergeson.’’2 The state counters that the
video does not conclusively establish the facts so as to
have preclusive effect over the testimony of the wit-
nesses. We agree with the state.
We begin with our standard of review. ‘‘In reviewing
the sufficiency of the evidence to support a criminal
conviction we apply a two-part test. First, we construe
the evidence in the light most favorable to sustaining
the verdict. Second, we determine whether upon the
facts so construed and the inferences reasonably drawn
therefrom the [finder of fact] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . . We
note that the [finder of fact] must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, [but] each of
the basic and inferred facts underlying those conclu-
sions need not be proved beyond a reasonable doubt.
. . . If it is reasonable and logical for the [finder of
fact] to conclude that a basic fact or an inferred fact
is true, the [finder of fact] is permitted to consider the
fact proven and may consider it in combination with
other proven facts in determining whether the cumula-
tive effect of all the evidence proves the defendant
guilty of all the elements of the crime charged beyond
a reasonable doubt. . . .
‘‘When there is conflicting evidence . . . it is the
exclusive province of the . . . trier of fact, to weigh
the conflicting evidence, determine the credibility of
witnesses and determine whether to accept some, all
or none of a witness’ testimony. . . . Questions of
whether to believe or to disbelieve a competent witness
are beyond our review. As a reviewing court, we may
not retry the case or pass on the credibility of witnesses.
. . . We must defer to the trier of fact’s assessment of
the credibility of the witnesses that is made on the basis
of its firsthand observation of their conduct, demeanor
and attitude. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Citation omitted; internal quotation marks
omitted.) State v. Little, 127 Conn. App. 336, 339–40,
14 A.3d 1036, cert. denied, 302 Conn. 928, 28 A.3d 343
(2011); see also State v. Testa, 123 Conn. App. 764,
767–68, 3 A.3d 142, cert. denied, 298 Conn. 934, 10 A.3d
518 (2010).
‘‘Furthermore, [i]n [our] process of review, it does
not diminish the probative force of the evidence that
it consists, in whole or in part, of evidence that is cir-
cumstantial rather than direct. . . . It is not one fact,
but the cumulative impact of a multitude of facts which
establishes guilt in a case involving substantial circum-
stantial evidence. . . . [An] appellate court’s first task,
in responding to a claim of evidentiary insufficiency, is
to apply the traditional scope of review to the evidence.
That requires that . . . we view all of the evidence,
and the reasonable inferences drawable therefrom, in
favor of the [trier’s] verdict. . . . We note that a claim
of insufficiency of the evidence must be tested by
reviewing no less than, and no more than, the evidence
introduced at trial.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Butler, 296 Conn. 62, 77,
993 A.2d 970 (2010).
The state set forth the following in its second
amended substitute information: ‘‘And said [prosecu-
tor] further accuses [the defendant] of [violating § 14-
223 (b)] and charges in the City of New London, on or
about April 23, 2009, the [defendant] at Wall Street, did
increase the speed of the motor vehicle he was driving
in an attempt to escape or elude . . . Bergeson of the
New London Police Department when said police offi-
cer activated his emergency lights and sirens indicating
to the [defendant] to stop, but instead the [defendant]
increased his speed . . . .’’
We now turn to the relevant text of § 14-223 (b): ‘‘No
person operating a motor vehicle, when signaled to stop
by an officer in a police vehicle using an audible signal
device or flashing or revolving lights, shall increase the
speed of the motor vehicle in an attempt to escape or
elude such police officer. Any person who violates this
subsection shall be guilty of a class A misdemeanor
. . . .’’ This court has identified the elements necessary
to support a conviction under this statute. Specifically,
we stated that a conviction under this statute ‘‘requires
proof that an officer using an audible signal or flashing
or revolving lights signaled the operator to stop and
that the operator increased his vehicle’s speed in an
attempt to escape.’’ State v. Browne, 84 Conn. App. 351,
370, 854 A.2d 13, cert. denied, 271 Conn. 931, 859 A.2d
930 (2004). In Browne, we further noted that ‘‘[§] 14-
223 requires only the general intent to escape or to
elude a police officer signaling the operator of a motor
vehicle to stop. General intent is the term used to define
the requisite mens rea for a crime that has no stated
mens rea; the term refers to whether a defendant
intended deliberate, conscious or purposeful action, as
opposed to causing a prohibited result through acci-
dent, mistake, carelessness, or absent-mindedness.
Where a particular crime requires only a showing of
general intent, the prosecution need not establish that
the accused intended the precise harm or precise result
which resulted from his acts.’’ (Internal quotation marks
omitted.) Id., 372.
The state presented the following evidence to prove
that the defendant violated § 14-223 (b). At the time of
trial, Bergeson was a police lieutenant who had been
employed by the New London Police Department for
fourteen years. Bergeson testified that while in pursuit
of the defendant’s van with his overhead lights and
siren turned on, he observed the defendant accelerate
up Wall Street. Additionally, the jury watched the video
of the incident. The video shows the defendant’s van
take a sudden left turn, without signaling or braking,
onto Wall Street. The van is out of frame of the video
camera for approximately five seconds. The van contin-
ues up Wall Street for approximately eleven seconds
before the defendant approaches a stop sign and applies
the brakes. The defendant does not appear to come to a
complete stop before turning right onto Summer Street.
The defendant does not claim that he was not the
operator of the van, that Bergeson was not a police
officer or that Bergeson did not use his overhead flash-
ing or revolving lights and sirens as a signal for the
defendant to stop. His claim on appeal is limited to
whether he increased his speed while driving on Wall
Street with the intent to escape or elude Bergeson.
Specifically, the defendant argues that the video of the
incident conclusively shows that these two elements
were not proven by the state beyond a reasonable
doubt. In support, he relies on Scott v. Harris, 550 U.S.
372, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007), and State
v. Santos, 267 Conn. 495, 838 A.2d 981 (2004).
In Harris, the issue before the United States Supreme
Court was ‘‘whether a law enforcement official can,
consistent with the Fourth Amendment, attempt to stop
a fleeing motorist from continuing his public-endanger-
ing flight by ramming the motorist’s car from behind.’’
Scott v. Harris, supra, 550 U.S. 374. The respondent
was observed travelling seventy-three miles per hour,
exceeding the posted speed limit by eighteen miles per
hour. Id. A police chase ensued, and Georgia Deputy
Timothy Scott, the petitioner, requested and received
permission to perform a maneuver that would cause
the respondent’s vehicle to spin to a stop. Id., 375. The
petitioner applied a push bumper to the rear of the
respondent’s vehicle and, as a result, the respondent
lost control of his vehicle, which went down an embank-
ment. He was rendered a quadriplegic. Id.
The respondent filed a lawsuit alleging that there had
been excessive force used that resulted in an unreason-
able seizure in violation of the fourth amendment to
the United States constitution. Id., 375–76. The peti-
tioner filed a motion for summary judgment on the basis
of qualified immunity. Id., 376. The respondent’s version
of the events differed significantly from that of the
petitioner. Id., 378. As a result, both the District Court
and the United States Court of Appeals for the Eleventh
Circuit determined that the petitioner was not entitled
to summary judgment. Id., 376. The petitioner success-
fully petitioned for certification to appeal to the United
States Supreme Court. Id.
The United States Supreme Court began its analysis
by noting that, generally, the District Court is required
to view the facts in the light most favorable to the
nonmoving party, there, the respondent. Id., 378. ‘‘There
is, however, an added wrinkle in this case: existence
in the record of a videotape capturing the events in
question. There are no allegations or indications that
this videotape was doctored or altered in any way, nor
any contention that what it depicts differs from what
actually happened. The videotape quite clearly contra-
dicts the version of the story told by respondent . . . .’’
Id. The Supreme Court then described in detail the
chase as depicted on the videotape, and characterized it
as ‘‘a Hollywood-style car chase of the most frightening
sort, placing police officers and innocent bystanders
alike at great risk of serious injury.’’ Id., 380.
The videotape in Harris conclusively established the
facts with respect to whether the respondent’s driving
endangered human life, notwithstanding the general
rule of viewing a disputed factual record in favor of
the nonmoving party. ‘‘When opposing parties tell two
different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judg-
ment. . . . Respondent’s version of events is so utterly
discredited by the record that no reasonable jury could
have believed him. The Court of Appeals should not
have relied on such visible fiction; it should have viewed
the facts in the light depicted by the videotape.’’ Id.,
380–81. The United States Supreme Court reversed the
decision of the Court of Appeals, concluding that the
petitioner was entitled to summary judgment. Id., 386.
In Santos, our Supreme Court was faced with the
question of whether the trial court properly had denied
the defendant’s motion to suppress narcotics following
a warrantless patdown search for weapons. State v.
Santos, supra, 267 Conn. 496. The defendant filed a
motion to suppress, and the court conducted a hearing.
It found that two state police troopers were patrolling
athletic fields in Windham at night where they came
upon the defendant and three other individuals. Id.,
498–99. One of the troopers testified that, as he
approached, the men started pacing back and forth and
seemed visibly nervous. Id., 499. After further ques-
tioning, the trooper requested the men to stand in front
of his cruiser, which they did. Id., 500. One of the individ-
uals then started to move to the driver’s side of the
vehicle. Id. Out of concern for his safety, the trooper
instructed the four men to remain still and submit to
a patdown search. Id. When the trooper patted down
the defendant, he discovered a clear plastic bag con-
taining a white powdery substance and arrested the
defendant for possession of narcotics. Id., 500–501. Fol-
lowing the conclusion of the hearing, the trial court
denied the defendant’s motion to suppress. Id., 501.
On appeal, the defendant argued that the court
improperly found that he and the other individuals were
perspiring and pacing back and forth. Id., 502–503. As
a result, he claimed, the court improperly determined
that the trooper had a reasonable and articulable suspi-
cion for the patdown search. Id., 503. Our Supreme
Court concluded that the court’s finding that the defen-
dant and his companions were perspiring was clearly
erroneous because there was no testimony as to that
fact and the videotape of the event provided no support
for such a finding. Id., 506. Additionally, the videotape
did not support the trooper’s testimony that the defen-
dant and the others were pacing back and forth. Id. To
the contrary, ‘‘[t]he videotape depicts the defendant and
his friends standing at the rear of their car, occasionally
shifting their weight from one foot to the other while
standing in the glare of the spotlight, answering [the
trooper’s] questions. That movement cannot properly
be characterized as pacing back and forth.’’ (Internal
quotation marks omitted.) Id. As a result, our Supreme
Court concluded that the trial court should have granted
the defendant’s motion to suppress. Id., 511.
Guided by these cases and having reviewed the rele-
vant testimony and the video of Bergeson’s pursuit of
the defendant, we conclude that sufficient evidence
exists to support the jury’s finding of guilt with respect
to the violation of § 14-223 (b). The factor that distin-
guishes the present case from Harris and Santos is that
the video does not conclusively establish the underlying
facts. Specifically, the video does not undisputedly indi-
cate that the defendant was not accelerating up Wall
Street or that he lacked the intent to elude or escape
Bergeson. The video shows that the defendant made
an abrupt left turn onto Wall Street, without signaling.
The jury could have concluded that he accelerated at
that point. Additionally, the video does not conclusively
establish that the defendant did not accelerate while
driving on Wall Street. The jury was free to accept the
testimony of Bergeson, an experienced member of the
New London Police Department, that the defendant was
accelerating while travelling on Wall Street.3 See, e.g.,
State v. Hoover, 54 Conn. App. 773, 777, 738 A.2d 685
(1999) (‘‘It is the function of the jury to consider the
evidence and to judge the credibility of witnesses. . . .
The jury is free to accept or reject all or part of a witness’
testimony.’’ [Citation omitted; internal quotation marks
omitted.]).
We now turn to the element of whether the defendant
intended to escape or elude Bergeson. ‘‘As this court
frequently has observed, [i]ntent is a mental process,
and absent an outright declaration of intent, must be
proved through inferences drawn from the actions of
an individual, i.e., by circumstantial evidence. . . .
Furthermore, any inference drawn must be [rational]
and founded upon the evidence.’’ (Internal quotation
marks omitted.) State v. Colon, 117 Conn. App. 150,
157, 978 A.2d 99 (2009); see also State v. Papandrea,
120 Conn. App. 224, 230, 991 A.2d 617 (2010), aff’d, 302
Conn. 340, 26 A.3d 75 (2011).
‘‘It is well settled . . . that the question of intent is
purely a question of fact. . . . The state of mind of one
accused of a crime is often the most significant and, at
the same time, the most elusive element of the crime
charged. . . . Because it is practically impossible to
know what someone is thinking or intending at any
given moment, absent an outright declaration of intent,
a person’s state of mind is usually proven by circumstan-
tial evidence. . . . Intent may be and usually is
inferred from conduct. . . . [W]hether such an infer-
ence should be drawn is properly a question for the
jury to decide. . . . Intent may be inferred from cir-
cumstantial evidence such as the events leading to and
immediately following the incident, and the jury may
infer that the defendant intended the natural conse-
quences of his actions.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) State v.
Papandrea, supra, 120 Conn. App. 230.
The defendant argues that the video demonstrates
that he brought the van to a stop at intersections and
used turn signals, and therefore established that he
lacked the intent to escape or elude Bergeson. We are
not persuaded. First, the video does not show that the
defendant used his brakes or a turn signal as he made
the left turn onto Wall Street. The video does show
Bergeson’s police cruiser with its overhead flashing
lights and sirens turned on behind the defendant’s van
and the defendant not pulling over. Further, Nott testi-
fied that, while at the CVS parking lot, she made the
defendant aware of the fact that she was requesting
assistance. She stated that the defendant ‘‘heard the
response, ran to the car, got in the car and sped out—
ran to the van, got into the van and left the parking
lot.’’ Harris and Santos are distinguishable because the
video in this case does not conclusively establish the
facts underlying the charge of § 14-223 (b). The evi-
dence, including the video and the testimony of the
witnesses, provided the necessary support for the jury’s
finding that the defendant violated § 14-223 (b).
II
The defendant next claims that § 14-223 (b) is uncon-
stitutionally vague as applied to the facts of this case.
Specifically, he argues that because § 14-223 (b) does
not contain an element that a police officer, when ini-
tiating motor vehicle stops, must be acting lawfully and
within the scope of his or her duties, it authorizes or
even encourages arbitrary and discriminatory enforce-
ment. We are not persuaded.
As a preliminary matter, we consider whether this
claim has been preserved for appellate review. On April
16, 2010, the defendant filed a motion to dismiss the
charges of two counts of interfering with the police in
violation of § 53a-167a and one count of risk of injury
to a child in violation of § 53-21. He alleged that as
applied to the facts set forth in the operative informa-
tion, § 53a-167a was unconstitutionally broad and vague
and that § 53-21 was unconstitutionally vague. On April
12, 2011, prior to the start of the trial, the parties dis-
cussed the defendant’s motion with the court. In neither
the motion nor this discussion did the defendant argue
that § 14-223 (b) was unconstitutionally vague as
applied to the facts of this case. Further, this specific
claim was not raised in the defendant’s postverdict
motion for a new trial. We conclude, therefore, that
the defendant failed to preserve this claim in the trial
court proceedings.
The defendant argues, in the alternative, that his
claim is reviewable under State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989). In Golding, our
Supreme Court ‘‘held that a defendant can prevail on
a claim of constitutional error not preserved at trial
only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation clearly exists and clearly
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail.’’
(Internal quotation marks omitted.) State v. Burton, 258
Conn. 153, 157–58, 778 A.2d 955 (2001). The state does
not dispute that the record is adequate to review the
claim and that the claim is of constitutional magnitude.
We agree that the first two prongs of Golding are satis-
fied and, therefore, we will proceed to review the defen-
dant’s claim. Id., 158; State v. Tozier, 136 Conn. App.
731, 746, 46 A.3d 960, cert. denied, 307 Conn. 925, 55
A.3d 567 (2012); see also State v. Lavigne, 307 Conn.
592, 599, 57 A.3d 332 (2012) (‘‘[t]he first two [prongs
of Golding] involve a determination of whether the
claim is reviewable; the second two . . . involve a
determination of whether the defendant may prevail’’
[internal quotation marks omitted]). After reviewing the
merits of the defendant’s claim, we conclude that he
fails to satisfy the third Golding prong.
We begin our analysis with the standard of review
and the relevant legal principles with respect to a void
for vagueness challenge. ‘‘We begin by noting that
determining whether a [statute] is unconstitutionally
vague presents a question of law over which our review
is de novo. . . . [A] penal statute [must] define [a] crim-
inal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and dis-
criminatory enforcement. . . . [This concept] embod-
ies two central precepts: the right to fair warning of
the effect of a governing statute or regulation and the
guarantee against standardless law enforcement. . . .
[T]he [most] important aspect of the vagueness doctrine
is not actual notice . . . but . . . the requirement that
a legislature establish minimal guidelines to govern law
enforcement. . . . Thus, [i]n order to surmount a
vagueness challenge, a statute [must] afford a person
of ordinary intelligence a reasonable opportunity to
know what is permitted or prohibited . . . and must
not impermissibly [delegate] basic policy matters to
policemen, judges, and juries for resolution on an ad
hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory application. . . .
Finally, [i]f the meaning of a statute can be fairly ascer-
tained [the] statute will not be void for vagueness . . .
for [i]n most English words and phrases there lurk
uncertainties. . . . [T]he statute must contain some
core meaning within which the defendant’s actions
clearly fall. . . . References to judicial opinions involv-
ing the statute, the common law, legal dictionaries, or
treatises may be necessary to ascertain a statute’s mean-
ing to determine if it gives fair warning. . . .
‘‘For statutes that do not implicate the especially
sensitive concerns embodied in the first amendment,
we determine the constitutionality of a statute under
attack for vagueness by considering its applicability to
the particular facts at issue. . . . [T]o prevail on his
claim, the defendant must demonstrate beyond a rea-
sonable doubt that the statute, as applied to him,
deprived him of adequate notice of what conduct the
statute proscribed or that he fell victim to arbitrary and
discriminatory enforcement.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Stephens, 301
Conn. 791, 800–802, 22 A.3d 1262 (2011); State v. Winot,
294 Conn. 753, 758–60, 988 A.2d 188 (2010). Put another
way, ‘‘[o]ur fundamental inquiry is whether a person
of ordinary intelligence would comprehend that the
defendant’s acts were prohibited . . . .’’ (Internal quo-
tation marks omitted.) State v. Elliott, 127 Conn. App.
464, 471, 14 A.3d 439, cert. denied, 301 Conn. 916, 21
A.3d 462 (2011). We also ‘‘restate the common-law rule
that everyone is presumed to know the law and that
ignorance of the law excuses no one from criminal
sanction.’’ State v. Knybel, 281 Conn. 707, 713, 916 A.2d
816 (2007). Finally, we note that ‘‘[a] statute is not void
for vagueness unless it clearly and unequivocally is
unconstitutional, making every presumption in favor of
its validity.’’ (Internal quotation marks omitted.) State
v. Ward, 306 Conn. 718, 742, 51 A.3d 970 (2012); see
also State v. Springmann, 69 Conn. App. 400, 407, 794
A.2d 1071 (to prevail in challenge to constitutionality
of statute, defendant must demonstrate beyond reason-
able doubt that statute, as applied, deprived him or
her of adequate notice or that he or she fell victim to
arbitrary and discriminatory enforcement), cert.
denied, 260 Conn. 934, 802 A.2d 89 (2002).
The defendant’s vagueness argument may be summa-
rized as follows. First, citizens of Connecticut enjoy a
common-law right to ignore unlawful commands by the
police. The trial court determined that the defendant
had engaged in constitutionally protected speech with
respect to his interaction with Nott at the CVS parking
lot. Nott provided Bergeson with no information that
would justify his decision to pull the defendant’s vehicle
over. Therefore, Nott and Bergeson lacked a legitimate
basis to stop the defendant after he left the CVS parking
lot, and their behavior amounted to arbitrary police
enforcement. Thus, the defendant argues: ‘‘Absent a
lawful basis to restrict [the defendant’s] freedom ab
initio, Bergeson acted unlawfully, and [§ 14-223 (b)]
cannot be enforced against [the defendant] without vio-
lating the common law.’’ (Emphasis in original.) In con-
clusion, the defendant states that in order to survive
his vagueness challenge, the court should have
instructed the jury that § 14-223 (b) applies only in cir-
cumstances where police officers are acting lawfully or
within the scope of their duties. We read the defendant’s
argument to mean that had the court interpreted § 14-
223 (b) to require that such an instruction be given, the
risk of arbitrary and discriminatory enforcement would
have been eliminated.
The state counters that a person of ordinary intelli-
gence would understand that, under the plain terms of
§ 14-223 (b), accelerating away from a signaling police
officer with the intent to escape or elude violates the
statute. It also argues that there is no risk of arbitrary
and discriminatory enforcement because the plain
terms of § 14-223 (b) provide sufficient guidance as to
the behavior that is prohibited. Additionally, even if
such minimum guidelines were absent, the statute has
a core meaning within which the defendant’s conduct
fell. The state further contends that the court’s dismissal
of the interference count relating to his conduct in the
CVS parking lot means only that the state failed to
produce sufficient evidence to sustain a conviction, not
that the officers were acting illegally. Finally, the state
maintains that even if the determination to arrest the
defendant was illegal, he had no right to engage in
criminal conduct to avoid the arrest.
The defendant does not appear to address the first
prong of a constitutional vagueness claim, that is, the
right to fair warning of the effect of a governing statute.
We therefore focus our analysis on the second prong,
that is, the guarantee against standardless law enforce-
ment. The question is whether the statute’s language
impermissibly delegated a basic policy matter for reso-
lution by police, judges and juries on an ad hoc and
subjective basis, particularly in light of the common-
law right of Connecticut citizens to refuse to obey an
unlawful police command to stop. Put another way,
‘‘a legislature [must] establish minimal guidelines to
govern law enforcement.’’ (Internal quotation marks
omitted.) State v. Winot, supra, 294 Conn. 760.
Our Supreme Court has instructed that ‘‘[a]s a practi-
cal matter, a court analyzing an as-applied vagueness
challenge may determine that the statute generally pro-
vides sufficient guidance to eliminate the threat of arbi-
trary enforcement without analyzing more specifically
whether the particular enforcement was guided by ade-
quate standards. In fact, it is the better (and perhaps
more logical) practice to determine first whether the
statute provides such general guidance, given that the
[United States] Supreme Court has indicated that the
more important aspect of the vagueness doctrine is the
requirement that a legislature establish minimal guide-
lines to govern law enforcement. . . . If a court deter-
mines that a statute provides sufficient guidelines to
eliminate generally the risk of arbitrary enforcement,
that finding concludes the inquiry.
‘‘[When] a statute provides insufficient general guid-
ance, an as-applied vagueness challenge may nonethe-
less fail if the statute’s meaning has a clear core. . . .
In that case the inquiry will involve determining whether
the conduct at issue falls so squarely in the core of
what is prohibited by the law that there is no substantial
concern about arbitrary enforcement because no rea-
sonable enforcing officer could doubt the law’s applica-
tion in the circumstances.’’ (Internal quotation marks
omitted.) State v. Stephens, supra, 301 Conn. 805–806.
The preceding explanation is necessary to put the
defendant’s argument into the proper context. We need
not proceed with the analytical framework, however,
due to a fatal flaw in the defendant’s analysis. He
assumes that the trial court, by granting his motion for
a judgment of acquittal with respect to the interfering
with a police officer count, found that the officers were
acting outside the scope of their police duties, i.e., ille-
gally and on a personal frolic. The court made no such
finding, either explicit or implicit. Rather, the court
determined that the state had failed to produce suffi-
cient evidence to support a conviction with respect to
the count of interfering with a police officer at the CVS
parking lot.
This court, citing federal law, has stated that the issue
of whether a police officer is acting within the scope
of his or her official duties is a factual question. State
v. Privitera, 1 Conn. App. 709, 722, 476 A.2d 605 (1984).
In State v. Davis, 261 Conn. 553, 572, 804 A.2d 781
(2002), our Supreme Court also indicated that the ques-
tion of whether a police officer was in the performance
of his or her duties presented an issue for the fact
finder.4 In the present case, the court granted the defen-
dant’s motion for a judgment of acquittal without find-
ing that the officers were acting outside the scope of
their duties. Therefore, the entire foundation of the
defendant’s as applied vagueness argument erodes. Spe-
cifically, the court did not find that the defendant was
issued an illegal police command. There was no deter-
mination that the officers lacked probable cause to
arrest the defendant. Thus, there were no findings to
support a conclusion that the efforts to arrest the defen-
dant for his conduct in the CVS parking lot were illegal.
As a result, the defendant’s claim fails under the third
prong of Golding.
III
The defendant next claims that the court improperly
failed to charge the jury on two theories of defense.
Specifically, he argues that he was entitled to have the
jury charged on the defenses of entrapment and the
exercise of his rights under the first amendment. The
state counters that these requested instructions were
not relevant to the issues before the jury, and that,
therefore, the court properly declined to give them. We
agree with the state.
The defendant submitted written jury instructions to
the court.5 The defendant requested the court to instruct
the jury on the defense of entrapment, as set forth in
General Statutes § 53a-15. He also requested that the
court instruct the jury with respect to the first amend-
ment to the United States constitution. Specifically, he
filed a request to charge the jury as follows: ‘‘Moreover,
the constitutional right to free speech extends to nearly
all words directed toward a police officer, even where
those words are angry, annoying or offensive, as long
as they don’t constitute a true threat to commit violence.
Asking someone, ‘Is this officer giving you a ticket,’
offering opinions about the integrity of the officer, or
inquiring whether the officer made a threat, are not
crimes. They are protected forms of expression. Asking
for a supervisor, such as a captain, is also a protected
form of expression. Insolence and rudeness are not
crimes, and enforcing better standards of social con-
duct is not the business of police officers, or the courts.
Due to their training and experience police officers
are expected to be more thick-skinned than ordinary
citizens, and therefore the first amendment protects a
significant amount of verbal criticism directed at police
officers, that might be inappropriate in other contexts.’’
The defendant also requested an instruction that taking
a photograph of a police officer is protected by the
first amendment.
The court discussed the jury charge with counsel on
the record. It stated that it would not charge the jury
as to the first amendment or the defense of entrapment.6
Defense counsel then stated that he requested the first
amendment charge because ‘‘there [was] testimony
that, that—the reason that the police acted the way
they acted was because of things that [the defendant]
said in the officer’s presence.’’7 Defense counsel further
elaborated that the officers were not in the performance
of their duties but rather were engaged in a personal
frolic; therefore, the efforts to pull the defendant over
and issue him a ticket were based on a personal grudge.
He also argued that acting in the performance of duty
was a necessary implied element of § 14-223 (b). Turn-
ing to the issue of entrapment, defense counsel argued
that there was evidence that the police provoked the
defendant to actions that constituted an offense. He
also contended that the officers were not acting in the
performance of their duty when they provoked the
defendant.
We begin our analysis with the defendant’s claim that
the court improperly refused to charge the jury on the
defense of entrapment. Our Supreme Court recently
addressed this issue in State v. Golodner, 305 Conn.
330, 46 A.3d 71 (2012). ‘‘Our review of the defendant’s
claim requires that we examine the [trial] court’s entire
charge to determine whether it is reasonably possible
that the jury could have been misled by the omission
of the requested instruction. . . . While a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a [trial] court need not tailor its charge to the precise
letter of such a request. . . . The defendant’s right as
a matter of law to a theory of defense instruction exists,
however, only when there is evidence adduced indicat-
ing the availability of the defense. The court . . . has
a duty not to submit to the jury, in its charge, any issue
upon which the evidence would not reasonably support
a finding. . . .
‘‘Entrapment is a legally recognized defense in this
state. . . . See General Statutes § 53a-15. Until some-
thing in the evidence indicates the contrary, the court
may presume the defendant intended the prohibited
bodily movements that constitute the offense and that
he has acted under no duress, unlawful inducement in
the nature of entrapment, or lack of requisite mental
capacity. . . . In reviewing the defendant’s claim that
he was entitled to instructions on an affirmative
defense, we look at the evidence in a light most favor-
able to his claim. . . . When a defendant has produced
evidence supporting a legally recognized defense, the
trial court’s refusal to provide an instruction with
respect to that defense constitutes a denial of due pro-
cess. . . .
‘‘[O]nly when evidence indicating the availability of
[a] legally recognized [defense] is placed before a jury
is a defendant entitled as a matter of law to a theory
of defense instruction. . . . [A] defendant is entitled
to have instructions presented relating to any theory
of defense for which there is any foundation in the
evidence, no matter how weak or incredible . . . . A
fundamental element of due process is the right of a
defendant charged with a crime to establish a
defense. . . .
‘‘Where the legislature has created a legally recog-
nized defense, in this case entrapment, this fundamental
constitutional right includes a proper jury instruction
on the elements of the defense of entrapment so that
the jury may ascertain whether the state has met its
burden of disproving it beyond a reasonable doubt. . . .
‘‘General Statutes § 53a-15 provides in relevant part:
[i]t shall be a defense that the defendant engaged in
the proscribed conduct because he was induced to do
so by a public servant, or by a person acting in coopera-
tion with a public servant, for the purpose of institution
of criminal prosecution against the defendant, and that
the defendant did not contemplate and would not other-
wise have engaged in such conduct. The subjective test
of entrapment focuses on the disposition of the defen-
dant to commit the crime for which he or she is accused.
. . . Under [the alternative objective test] standard,
entrapment exists if the government conduct was such
that a reasonable person would have been induced to
commit the crime. . . . The Connecticut legislature
has chosen to adopt the subjective defense of entrap-
ment. . . . This statute codifies prior Connecticut case
law . . . . To warrant an instruction on entrapment,
the defendant must produce evidence of both induce-
ment and his own lack of criminal disposition. . . .
Where, as here, an accused requests an instruction on
a defense such as entrapment, he may obtain such a
charge by adducing evidence . . . sufficient . . . for
a rational juror to find that all the elements of the
defense are established by a preponderance of the evi-
dence.’’ (Citations omitted; internal quotation marks
omitted.) Id., 351–53; see generally State v. McNally,
173 Conn. 197, 200–202, 377 A.2d 286 (1977); State v.
Marquardt, 139 Conn. 1, 4–8, 89 A.2d 219 (1952); see
also State v. Wilder, 128 Conn. App. 750, 755, 17 A.3d
1116 (‘‘[i]t is well established that where there is no
evidence that the defendant either was induced by the
police to commit a crime in which he would not have
engaged except for such inducement or that he admitted
to committing a crime, a charge on entrapment is not
required’’), cert. denied, 301 Conn. 934, 23 A.3d 730
(2011).
A
We first consider the defendant’s entrapment argu-
ment. On appeal, the defendant claims that his actions
were induced by and resulted from the provocation
from the members of the New London Police Depart-
ment. Furthermore, he contends that there was ‘‘over-
whelming’’ evidence that his actions were induced and
provoked by the police. Specifically, the defendant
points to the following: (1) Nott’s request to have the
defendant arrested for his conduct at the CVS parking
lot was unlawful; (2) Bergeson, as a supervisor, should
have known that there was no basis to stop the defen-
dant; (3) Bergeson falsified a police report detailing the
events of the police chase; (4) Nott and Bergeson knew
that they were defendants in a civil lawsuit filed by the
defendant; and (5) Bergeson’s use of his Taser provoked
or induced the defendant to reenter his van after he
had driven to his house.
We have noted that ‘‘under our state decisional law,
[e]vidence of unlawful inducement may be found where
the police . . . appeal to the [accused’s] sympathy or
friendship, or where they repeatedly or persistently
solicit the [accused] to commit the crimes.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Wilder, supra, 128 Conn. App. 758. The defendant has
failed to establish that the evidence in this case met
this standard and, thus, required an instruction on
entrapment. There is no evidence that Nott, Bergeson,
or any other member of the New London Police Depart-
ment repeatedly or persistently solicited the defendant
to drive away from the CVS parking lot and to refuse
to pull his vehicle over when signaled to do so. Addition-
ally, Bergeson’s pointing his Taser at the defendant,
after he had engaged in a pursuit and the defendant
refused to obey his direction to pull over, did not
amount to a repeated and persistent inducement to
interfere with Bergeson’s attempt to place the defen-
dant under arrest. There was no showing by the defen-
dant that, but for the actions of the police, he would
not have engaged in such conduct. See State v.
Golodner, supra, 305 Conn. 354. Additionally, there was
no evidence of lack of criminal disposition. See id., 353.
We conclude, therefore, that the court properly declined
to instruct the jury on the defense of entrapment.
B
We now turn to the defendant’s claim that he was
entitled to an instruction on the issue of constitutionally
protected speech. ‘‘[A] request to charge which is rele-
vant to the issues of the case and which is an accurate
statement of the law must be given. . . . [W]hen
reviewing the challenged jury instruction . . . we must
adhere to the well settled rule that a charge to the jury
is to be considered in its entirety, read as a whole, and
judged by its total effect rather than by its individual
component parts. . . . [T]he test of a court’s charge is
not whether it is as accurate upon legal principles as
the opinions of a court of last resort but whether it
fairly presents the case to the jury in such a way that
injustice is not done to either party under the estab-
lished rules of law. . . . As long as [the instructions]
are correct in law, adapted to the issues and sufficient
for the guidance of the jury . . . we will not view the
instructions as improper.’’ (Citation omitted; internal
quotation marks omitted.) State v. Berger, 249 Conn.
218, 234–35, 733 A.2d 156 (1999).
This argument is based upon the claim that the offi-
cers were found to have engaged in a personal frolic.
We have rejected that as contrary to the action of the
trial court. See part II of this opinion. Furthermore, we
agree with the state that the court was not required to
give the jury the requested first amendment instruction,
as it was not relevant to the remaining charges. See
State v. Vilchel, 112 Conn. App. 411, 434, 963 A.2d 658,
cert. denied, 291 Conn. 907, 969 A.2d 173 (2009). We
therefore reject these claims of instructional error.
IV
The defendant’s final claim is that he was deprived
of the right to a fair trial as a result of prosecutorial
impropriety.8 Specifically, he argues that the prosecutor
made five improper comments to the jury during closing
argument. The state concedes that two of the five state-
ments were improper. The state argues, however, that
the defendant was not deprived of his right to a fair
trial, despite the two improper statements. We conclude
that the defendant was not deprived of the right to a
fair trial.
We begin by setting forth the relevant law regarding
prosecutorial impropriety. ‘‘In analyzing claims of pros-
ecutorial impropriety, we engage in a two step analyti-
cal process. E.g., State v. Stevenson, 269 Conn. 563, 572,
849 A.2d 626 (2004). The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry. . . .
‘‘[T]he touchstone of due process analysis in cases
of alleged [harmful] prosecutorial [impropriety] is the
fairness of the trial, and not the culpability of the prose-
cutor. . . . The issue is whether the prosecutor’s
[actions at trial] so infected [it] with unfairness as to
make the resulting conviction a denial of due process.
. . . In determining whether the defendant was denied
a fair trial . . . we must view the prosecutor’s [actions]
in the context of the entire trial. . . .
‘‘[I]t is not the prosecutor’s conduct alone that guides
our inquiry, but, rather, the fairness of the trial as a
whole. . . . We are mindful throughout this inquiry,
however, of the unique responsibilities of the prosecu-
tor in our judicial system. A prosecutor is not only an
officer of the court, like every other attorney, but is
also a high public officer, representing the people of
the [s]tate, who seek impartial justice for the guilty as
much as for the innocent. . . . By reason of his [or
her] office, [the prosecutor] usually exercises great
influence upon jurors. [The prosecutor’s] conduct and
language in the trial of cases in which human life or
liberty [is] at stake should be forceful, but fair, because
he [or she] represents the public interest, which
demands no victim and asks no conviction through the
aid of passion, prejudice or resentment. If the accused
be guilty, he [or she] should [nonetheless] be convicted
only after a fair trial, conducted strictly according to
the sound and well-established rules which the laws
prescribe. . . .
‘‘Once prosecutorial impropriety has been alleged,
however, it is unnecessary for a defendant to seek to
prevail under State v. Golding, [supra, 213 Conn. 239–
40], and it is unnecessary for an appellate court to
review the defendant’s claim under Golding. . . . The
reason for this is that the touchstone for appellate
review of claims of prosecutorial [impropriety] is a
determination of whether the defendant was deprived
of his right to a fair trial, and this determination must
involve the application of the factors set out by this
court in State v. Williams, 204 Conn. 523, 540, 529
A.2d 653 (1987). As [the court] stated in that case: In
determining whether prosecutorial [impropriety] was
so serious as to amount to a denial of due process, this
court, in conformity with courts in other jurisdictions,
has focused on several factors. Among them are the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Fauci, 282 Conn. 23,
32–34, 917 A.2d 978 (2007). Guided by these principles,
we address each of the defendant’s claims of impropri-
ety in turn.9
A
The defendant first claims that the prosecutor
improperly offered his personal opinion on the issue
of the defendant’s guilt. During the beginning of his
rebuttal, the prosecutor argued to the jury: ‘‘And we all
know the burden is on me, on the state, to prove this
case beyond a reasonable doubt. Okay. Let me tell you
why. Let me tell you why I think this case warrants
conviction.’’ At this point, defense counsel objected,
but the court overruled the objection. The prosecutor
then proceeded to review the evidence against the
defendant. At the conclusion of the state’s rebuttal argu-
ment, the prosecutor stated: ‘‘Again, the burden is on
me. And rightly, it should be. If I’m going to convict
someone, I better well have a good case. And I think
we do.’’ Defense counsel again objected, and the court,
agreeing with the defendant, ordered that the personal
opinion of the prosecutor be stricken.
The defendant argues that, with respect to these two
statements, the prosecutor improperly offered his per-
sonal opinion on the issue of the defendant’s guilt. The
state counters that the statement made by the prosecu-
tor at the beginning of his rebuttal argument did not
amount to prosecutorial impropriety. It concedes, how-
ever, that the latter statement made by the prosecutor
was improper; nevertheless, it argues that the defendant
was not deprived of a fair trial.
1
We begin by determining whether the prosecutor’s
statement made at the outset of his rebuttal argument
amounted to an improper statement of his personal
opinion as to the defendant’s guilt or was a rhetorical
device to walk the jury through the evidence, as argued
by the state.
‘‘In determining whether [prosecutorial impropriety]
has occurred [in the course of closing arguments], the
reviewing court must give due deference to the fact
that [c]ounsel must be allowed a generous latitude in
argument, as the limits of legitimate argument and fair
comment cannot be determined precisely by rule and
line, and something must be allowed for the zeal of
counsel in the heat of argument. . . . Thus, as the
state’s advocate, a prosecutor may argue the state’s
case forcefully, [provided the argument is] fair and
based upon the facts in evidence and the reasonable
inferences to be drawn therefrom. . . . Moreover, [i]t
does not follow . . . that every use of rhetorical lan-
guage or device [by the prosecutor] is improper. . . .
The occasional use of rhetorical devices is simply fair
argument. . . . Nevertheless, the prosecutor has a
heightened duty to avoid argument that strays from the
evidence or diverts the jury’s attention from the facts
of the case.’’ (Internal quotation marks omitted.) State
v. Boutilier, 133 Conn. App. 493, 510, 36 A.3d 282, cert.
denied, 304 Conn. 914, 40 A.3d 785 (2012).
We agree with the state that the prosecutor’s com-
ment served as an introduction to his review and sum-
mary of the evidence against the defendant and was
not improper.10 ‘‘We must give the jury the credit of
being able to differentiate between argument on the
evidence and attempts to persuade them to draw infer-
ences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret
knowledge, on the other hand. The state’s attorney
should not be put in the rhetorical straitjacket of always
using the passive voice, or continually emphasizing that
he is simply saying I submit to you that this is what
the evidence shows, or the like.’’ (Internal quotation
marks omitted.) State v. Thompson, 266 Conn. 440, 465–
66, 832 A.2d 626 (2003); see also State v. Houle, 105
Conn. App. 813, 823, 940 A.2d 836 (2008) (where prose-
cutor used ‘‘I,’’ it was evident he was encouraging jury
to draw reasonable inferences from evidence).
2
We next turn to the prosecutor’s statement express-
ing his personal belief that the state had a strong case.
As noted previously, the state concedes that this state-
ment was improper.11 We agree. Accordingly, we use
the Williams factors to determine if the defendant was
deprived of his right to a fair trial as a result of this
statement. We conclude that he was not.
The prosecutor’s comment was not invited by defense
counsel, and upon objection was stricken by the court.
The court also immediately instructed the jury that the
personal opinion of the prosecutor was not part of the
argument. In addition to this curative measure, the court
instructed the members of the jury that they were the
sole judges of the facts, that they were to determine
the facts from the evidence and not the argument of
counsel and that they were not to consider matters
stricken from the record. The jury is presumed to have
followed the court’s instructions. State v. Payne, 303
Conn. 538, 568, 34 A.3d 370 (2012). The improper com-
ment was not severe, as it followed the prosecutor’s
summary of the evidence. This improper comment was
a single instance and, therefore, was not frequent.
Finally, although we would not describe the state’s case
as overwhelming, we disagree with the defendant’s
assertion that the state had a weak case. There was
more than sufficient evidence presented that supported
the jury’s verdict. For all of these reasons, we conclude
that the defendant was not deprived of the right to a
fair trial.
B
The defendant next contends that the prosecutor’s
arguments violated the prohibition against ‘‘golden
rule’’ arguments in two instances. ‘‘[A] golden rule argu-
ment is one that urges jurors to put themselves in a
particular party’s place . . . or into a particular party’s
shoes. . . . Such arguments are improper because they
encourage the jury to depart from neutrality and to
decide the case on the basis of personal interest and
bias rather than on the evidence. . . . They have also
been equated to a request for sympathy. . . . The dan-
ger of these types of arguments lies in their [tendency]
to pressure the jury to decide the issue of guilt or inno-
cence on considerations apart from the evidence of the
defendant’s culpability. . . . [A] prosecutor may not
appeal to the emotions, passions and prejudices of the
jurors. . . . [S]uch appeals should be avoided because
they have the effect of diverting the [jurors’] attention
from their duty to decide the case on the evidence. . . .
When the prosecutor appeals to emotions, he 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.’’ (Citations omitted; internal quotation marks
omitted.) State v. Ovechka, 118 Conn. App. 733, 745,
984 A.2d 796, cert. denied, 295 Conn. 905, 989 A.2d
120 (2010). Put another way, ‘‘[t]he animating principle
behind the prohibition on golden rule arguments is that
jurors should be encouraged to decide cases on the
basis of the facts as they find them, and reasonable
inferences drawn from those facts, rather than by any
incitement to act out of passion or sympathy for or
against any party. . . . Although we recognize that this
danger is most acute when the prosecutor asks the
jurors to put themselves in the position of the victim
rather than the defendant or another witness . . . we
conclude that the principle barring the use of such
arguments is the same regardless of which individual
is the subject of the prosecutor’s emotional appeal.’’
(Citation omitted; emphasis omitted; internal quotation
marks omitted.) State v. Long, 293 Conn. 31, 57–58, 975
A.2d 660 (2009).
During his rebuttal closing argument, the prosecutor
stated: ‘‘And then there’s . . . the discussion about
. . . Bergeson taking out his Taser. Well, you know
. . . Bergeson just chased this individual, you know, it
might’ve [been] for a minute, but he doesn’t know what
his state, the defendant’s state of mind is. He doesn’t
know what he’s going to do. He has a right to protect
himself. Put yourself in the policeman’s shoes. What
would you do?
‘‘And yes, there’s a civil rights suit. You know,
granted, it came out. But doesn’t . . . Bergeson have
the right to at least defend himself. He doesn’t know
what the defendant’s state of mind is on this particu-
lar day.
‘‘Now, getting back to the engaging police in pursuit,
how many times have—when you’ve been driving down
the road, have you ever seen the flashing red lights in
the rearview mirror. . . . What would you do? What
is your normal reaction when you see the flashing red
lights in the rearview mirror?’’12 (Emphasis added.)
The defendant argues that the two comments, which
we have emphasized, violated the prohibition against
golden rule arguments.
1
After reviewing the record, we are satisfied that the
comment made by the prosecutor asking the jurors
what their normal reaction was when they saw flashing
red lights in their vehicles’ rearview mirrors did not
constitute an improper attempt to appeal to the emo-
tions of the jurors, but rather was an appropriate
request for them to draw an inference from the evi-
dence. See State v. Bell, 283 Conn. 748, 769–70, 931 A.2d
198 (2007); State v. Ovechka, supra, 118 Conn. App. 746.
Specifically, that comment encouraged the jurors to
draw inferences from the evidence as to the defendant’s
action in not pulling over when Bergeson was signaling
that amounted to a violation of § 14-223 (b). We con-
clude, therefore, that the prosecutor’s comment did not
violate the prohibition against golden rule arguments.
2
With respect to the prosecutor’s comment inviting
the members of the jury to place themselves in the
shoes of a police officer and asking what they would
do in the present situation, we conclude that the com-
ment was improper because it violated the prohibition
against golden rule arguments. Specifically, it encour-
aged the members of the jury to decide the case not
on the basis of the facts of the case, but rather on their
emotions and passions. Put another way, the prosecu-
tor’s comment inviting the jurors to place themselves
in the shoes of a police officer was tantamount to a
request for sympathy and a recognition of the challeng-
ing tasks facing police officers. Accordingly, we con-
clude that this comment was improper.
We now apply the Williams factors to determine
whether this comment deprived the defendant of the
right to a fair trial. We conclude that it did not.
Defense counsel stated during closing argument that
Bergeson intended to Taser the defendant and reminded
the jury of the defendant’s heart condition and hyperten-
sion, and that the defendant’s daughter was present
during the encounter. He also stated: ‘‘Now, [the defen-
dant] knows Bergeson. He’s suing Bergeson. Imagine
a guy who’s got a personal beef against you being the
one standing there with a dangerous instrument.’’ In
short, counsel provided the jury with the reasons for the
defendant’s actions. In response to that, the prosecutor
provided the jury with the reasons for Bergeson’s
actions, including the threatened use of the Taser. The
prosecutor’s comment, therefore, was in response to
the argument of defense counsel. We also conclude
that this instance of impropriety was not severe, not
frequent, and was not central to the critical issues of
the case. See State v. Fauci, supra, 282 Conn. 32–34.
Accordingly, the defendant was not deprived of his right
to a fair trial as a result of this improper statement.
C
The defendant next contends that the prosecutor
improperly went outside the record and asserted his
personal knowledge when he stated how he would have
reacted in the defendant’s situation. The state concedes
that this statement was improper,13 but argues that it
did not deprive the defendant of his right to a fair trial.
We agree with the state.
During his rebuttal closing argument, the prosecutor
stated: ‘‘Now, getting back to the engaging police in
pursuit, how many times have—when you’ve been driv-
ing down the road, have you ever seen the flashing red
lights in the rearview mirror. I’m a prosecutor, and I
get a lump in my throat. I’m like—oh, God—what
did I do. I’m checking my speedometer. I see if my
headlights work, whatever. You know what I do? I pull
over. It doesn’t even matter whether I did something
wrong or not. . . . I know what to do at that particular
point.’’ (Emphasis added.)
Defense counsel immediately objected and stated the
basis for the objection as follows: ‘‘Putting—the prose-
cutor is not allowed to put his own personal experience
into argument.’’ The prosecutor then withdrew his com-
ments about his personal experiences, and the court
instructed the jury: ‘‘Withdrawn. All right, you may dis-
regard that portion of the argument.’’
As a general matter, we note that ‘‘[a] prosecutor . . .
may not . . . inject extraneous issues into the case that
divert the jury from its duty to decide the case on the
evidence. . . . A prosecutor, in fulfilling his duties,
must confine himself to the evidence in the record.’’
(Citation omitted; internal quotation marks omitted.)
State v. Moore, 293 Conn. 781, 809, 981 A.2d 1030 (2009),
cert. denied, U.S. , 130 S. Ct. 3386, 177 L. Ed.
2d 306 (2010). This court has stated that it is improper
for a prosecutor to invite the jury to consider the con-
duct of the defendant through the lens of the prosecu-
tor’s own life experiences. See State v. Houle, supra,
105 Conn. App. 825.
We therefore turn to the Williams factors to deter-
mine whether these comments violated the defendant’s
right to a fair trial. The comment was isolated, not
central to a key issue of the case and the state presented
a strong case. Indeed, there is no dispute that the defen-
dant failed to pull over when signaled to do so by Berge-
son. Additionally, following defense counsel’s
objection, the prosecutor immediately withdrew the
comment, and the court instructed the jury to disregard
it. As we previously noted, the court, during its charge,
instructed the members of the jury not to consider
matters that were not part of the evidence. For these
reasons, we conclude that the defendant has failed to
establish a deprivation of the right to a fair trial as a
result of the prosecutorial impropriety.
The judgment is affirmed.
In this opinion BEACH, J., concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
1
In State v. Williams, supra, 205 Conn. 473, our Supreme Court stated:
‘‘To avoid the risk of constitutional infirmity, we construe § 53a-167a to
proscribe only physical conduct and fighting words that by their very utter-
ance inflict injury or tend to incite an immediate breach of the peace.’’
(Internal quotation marks omitted.)
2
Video recordings from cameras located in various police vehicles, includ-
ing those of Bergeson and Nott, were transferred to a disc and admitted
into evidence as state’s exhibit #1. On November 19, 2012, the parties filed a
joint stipulation with this court indicating that attached the DVDs constituted
four copies of the contents of the state’s exhibit #1. This court has reviewed
the contents of the video recordings. Further, we note that there is no claim
that the video records have been altered in any way.
3
We note that defense counsel conducted a rigorous cross-examination
of Bergeson regarding the details of the pursuit, using not only the video, but
also Bergeson’s police report. Further, defense counsel highlighted certain
inconsistencies and pointed out Bergeson’s failure to follow policies regard-
ing police pursuits.
4
We acknowledge that the discussion regarding whether the police were
in the performance of their duties in both Privitera and Davis was in the
context of the interplay between General Statutes §§ 53a-23, 53a-167a (a)
and 53a-167c (a). Nevertheless, we conclude that the question of whether
Nott and Bergeson were in the performance of their official duties or acting
illegally and on a personal frolic is a factual determination that was not
made by the court, acting on the defendant’s motion for a judgment of
acquittal, in this case.
5
The defendant preserved this claim by submitting a written request to
charge. See State v. Vilchel, 112 Conn. App. 411, 417, 963 A.2d 658, cert.
denied, 291 Conn. 907, 969 A.2d 173 (2009); see also Practice Book § 42-16.
6
During his closing argument to the jury, defense counsel referenced the
first amendment and entrapment issues.
7
See Practice Book § 42-16.
8
Our Supreme Court has stated that ‘‘when a defendant raises on appeal
a claim that improper remarks by the prosecutor deprived the defendant
of his constitutional right to a fair trial, the burden is on the defendant to
show, not only that the remarks were improper, but also that, considered
in light of the whole trial, the improprieties were so egregious that they
amounted to a denial of due process.’’ State v. Payne, 303 Conn. 538, 562–63,
34 A.3d 370 (2012).
9
‘‘We previously have recognized that a claim of prosecutorial impropriety,
even in the absence of an objection, has constitutional implications and
requires a due process analysis . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Gibson, 302 Conn. 653, 658–59, 31 A.3d 346 (2011).
We note that following the argument of counsel, the defendant moved for
a mistrial on the basis of the closing argument made by the prosecutor. The
court denied the defendant’s motion.
10
‘‘The propriety of the prosecutor’s statement must, however, be exam-
ined in the context in which it was made.’’ State v. Felix, 111 Conn. App.
801, 809, 961 A.2d 458 (2008).
11
The state set forth the following in its brief: ‘‘Comments addressing the
strength of the state’s case are permissible when properly connected to
evidence adduced at trial. . . . Because, however, the prosecutor did not
directly connect the statement to evidence, the state agrees that the comment
was improper.’’ (Citation omitted.)
12
Defense counsel objected to the prosecutor’s question to members of
the jury regarding what they would do if they saw red flashing lights in
their rearview mirror while operating a motor vehicle. The court overruled
the objection.
13
The state directs our attention to State v. Houle, supra, 105 Conn.
App. 824, in which the prosecutor improperly commented on his personal
experience with alcohol. The state acknowledges the similarities between
that case and the present one.