State v. Fluker

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  State v. Fluker STATE OF CONNECTICUT v. KWANZE FLUKER (AC 47256) Cradle, C. J., and Elgo and Westbrook, Js. Syllabus Convicted of several crimes, including conspiracy to commit murder in the shooting death of the victim, the defendant appealed. He claimed, inter alia, that he was denied his due process right to a fair trial when the trial court denied his motion for a mistrial after a police officer testified that DNA evi- dence obtained from the defendant’s vehicle matched the record of a ”known felon” in a DNA database and that individual was the defendant. Held: The trial court did not abuse its discretion in denying the defendant’s motion for a mistrial, as the police officer’s remark was unprompted by the state, it was an isolated occurrence, the court struck the remark from the record, the state thereafter presented testimony that helped mitigate any prejudice that may have resulted from the remark, the state’s case was relatively strong, and the defendant declined the court’s repeated offers to provide the jury with curative instructions; accordingly, the police officer’s remark did not result in substantial and irreparable prejudice to the defendant. The defendant failed to establish that the prosecutor’s improper comments during closing argument to the jury, namely, the prosecutor’s reference to a witness as a “snitch,” which improperly referenced testimony stricken by the trial court, her assertion that a witness testified that the defendant used a “street name,” which was contrary to the actual testimony, and the prosecu- tor’s improper appeal for sympathy for the victim, violated the defendant’s due process right to a fair trial, as, although the defendant did not invite any of the improprieties, the defendant did not object, request curative instructions or move for a new trial on the basis of those comments, which were not severe, frequent or central to the state’s case, the improper effect of any of the comments was diminished by the court’s general instructions to the jury after closing arguments, and, as the state’s case was strong and persuasive, there was no reasonable likelihood that the jury’s verdict would have been different in the absence of the prosecutor’s improper comments. The trial court did not commit plain error, as the defendant claimed, by failing to provide the jury, sua sponte, with a special credibility instruction regarding the testimony of his accomplice, who had entered into a cooperation agreement with the state, as the defendant did not provide any authority that required the court to give such an instruction sua sponte, he did not claim that the instructions the court gave the jury on witness credibility and accomplice testimony were improper, and, under the law existing at the time of his trial, the defendant was not entitled to an instruction singling out a state’s witness and highlighting that witness’ motive for testifying falsely. Argued January 5—officially released July 28, 2026  State v. Fluker Procedural History Substitute information charging the defendant with the crimes of conspiracy to commit murder, arson in the second degree, arson in the third degree and tamper- ing with or fabricating physical evidence, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Schuman, J.; thereafter, the court denied the defendant’s motion for a mistrial; verdict and judgment of guilty of conspiracy to commit murder, arson in the second degree and tampering with or fabricating physical evidence, from which the defendant appealed to this court. Affirmed. Ruth Burke, deputy assistant public defender, for the appellant (defendant). Jonathan M. Sousa, assistant state’s attorney, with whom, on the brief, were Sharmese L. Walcott, state’s attorney, Samantha Magnani, assistant state’s attor- ney, Olivia Jones, special deputy assistant state’s attor- ney, and Jesse Giddings, former supervisory assistant state’s attorney, for the appellee (state). Opinion CRADLE, C. J. The defendant, Kwanze Fluker, appeals from the judgment of conviction, rendered following a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), arson in the second degree in violation of General Statutes § 53a-112 (a) (1) (B), and tampering with or fabricating physical evidence in violation of General Statutes § 53a- 155 (a) (1). On appeal, the defendant claims that (1) the trial court improperly denied his motion for a mistrial, (2) the prosecutor engaged in improprieties during the trial and closing argument that deprived him of his due process right to a fair trial, and (3) the court committed plain error by failing, sua sponte, to provide the jury with a special credibility instruction with respect to the testimony of a witness who had a cooperation agreement  State v. Fluker with the state. We disagree and, accordingly, affirm the judgment of the trial court. The following facts, which the jury reasonably could have found, and procedural history are relevant to the resolution of this appeal. On August 29, 2021, the defen- dant called Emmanuel Floyd, an acquaintance of his for several years, and asked him to meet. The two men, while remaining on the phone with each other,1 met on Blue Hills Avenue in Bloomfield. The defendant arrived in a 2008 Nissan Maxima, and Floyd arrived in a 2006 BMW 530i and in possession of a nine millimeter Glock 19 hand- gun. While Floyd and the defendant were together, they saw the victim, Dominique Miller, drive past them in a red Polaris Slingshot. According to Floyd, the defendant suggested that they follow the victim “to talk to him” because “[the defendant] was [mad] [that the victim] was chumming with Marion Edwards,” who had “told on [the defendant] before . . . .” Floyd agreed. Floyd, too, had a “problem” with the victim because the victim “had shot at [Floyd] before.” The defendant and Floyd then followed the victim in their vehicles. They initially lost him but then located him nearby on Euclid Street. The two men continued to follow the victim, first to a nearby party on Granby Street and then to Madison Motors, LLC (Madison Motors), an auto- mobile dealership and repair shop in Bloomfield. While the victim was at Madison Motors, the defendant drove to a nearby Burger King restaurant, and Floyd drove to a nearby Home Depot store. Once the victim left Madison Motors, he drove to a gas station on Blue Hills Avenue, with the defendant and Floyd still following him. After the victim left the gas station, he traveled onto Interstate 91 northbound while Floyd and the defendant continued following him. While on Interstate 91, the victim sped up. The defendant instructed Floyd to speed up as well because he was in a faster vehicle and told him “to get 1 Call logs established that Floyd and the defendant spoke for approxi- mately eight and one-half hours from August 28 through September 1, 2021, including during the one and one-half hours leading up to and including the time of the shooting.  State v. Fluker right and shoot [the victim].” Floyd refused because he did not want to shoot the victim while they were driving on the highway. The victim then drove off of Interstate 91 at exit 42, and Floyd and the defendant followed. The victim stopped at a red traffic signal in the left lane of the off ramp, and Floyd drove alongside him in the right lane. The defendant then again instructed Floyd to “get it right, shoot him now, shoot him now, do it . . . .” Floyd then fired six gunshots at the victim and left the area. Not long after the shooting, a complainant called 911 to report that she had found the victim deceased in his car on the exit 42 off ramp of Interstate 91 northbound. Officers with the Windsor Locks Police Department and Connecticut State Police arrived at the scene and found the victim in the driver’s side of the Slingshot with his head slumped over, as well as multiple shell casings on the ground by the Slingshot’s passenger side. Paramedics then arrived, and the victim was pronounced dead at the scene. Autopsy and ballistics evidence later established that the cause of death was four gunshot wounds, one each to the head and neck, and two to the upper torso. There were no known eyewitnesses and no available surveillance footage of the shooting was found.2 The lead investigator, Detective Christopher Scott of the Connecticut State Police, Central District Major Crimes Squad (major crimes squad), and other investigating officers were able to identify the victim’s last known loca- tion. The officers were then able to collect surveillance footage from several nearby businesses and to track his movements until he drove onto Interstate 91 northbound. While observing the surveillance footage, the investigat- ing officers noticed the same two vehicles, a 2008 Nissan Maxima and a 2006 BMW 530i, following the victim.3 2 The complainant who called 911 did not witness the shooting. 3 The officers determined that the Nissan had a distinctive faded hood, tinted windows, and a sticker on the rear driver’s side window, but they were unable to obtain a license plate number for it at that time based on the surveillance footage. The officers also determined that the BMW had a visible dent, a dark bumper, and tinted windows, and were able to obtain a partial license plate number.  State v. Fluker The officers obtained cell site location information (CSLI) that provided evidence that the defendant’s and Floyd’s cell phones were at locations that corresponded to the vehicles’ presence on the surveillance footage. The offi- cers also obtained surveillance footage of the driver of the Nissan at the Burger King drive-through. The driver was wearing sunglasses, which covered his eyes, and a surgical mask pulled down to his chin, which left the remainder of his face exposed. On August 31, 2021, Scott and Detective Michael Stanger, also with the major crimes squad, saw a Nis- san in Bloomfield that matched the description of the Nissan in the surveillance footage.4 When the officers approached, the vehicle sped off and evaded the police; however, the officers were able to obtain the license plate number, which they later determined was not registered to the Nissan. On September 1, 2021, the officers observed Floyd driving his BMW5 in Bloomfield and detained him. The officers brought Floyd to the state police Troop H bar- racks in Hartford for questioning and seized his cell phone and the BMW as evidence.6 Floyd told the officers that he was at home on the day of the shooting and never mentioned the defendant. On September 3, 2021, police officers investigat- ing an unrelated matter saw the Nissan in Hartford. They alerted officers with the major crimes squad and attempted to block the vehicle into a driveway. In an 4 Scott testified that “[t]he faded hood, the tinted windows, and the sticker on the rear driver’s side” had drawn his attention to the vehicle. 5 The officers determined that Floyd was the registered owner of the BMW. 6 Scott testified that two search warrants were obtained, one for Floyd’s cell phone and another for his BMW. The search of Floyd’s cell phone revealed the following Internet searches: “how fast does a Slingshot go,” “homicide in Windsor Locks,” “man found dead off [Interstate 91] Windsor Locks, Connecticut,” “Kwanze Fluker,” and “car wash near me.” Police officers also found that Floyd had screenshotted multiple photos of the victim and his family. As for Floyd’s BMW, the steering wheel contained particles consistent with gunshot residue.  State v. Fluker attempt to evade the officers, the defendant backed the Nissan into a garage at the other end of the driveway, hitting the corner of the garage, before driving forward, colliding with police and civilian vehicles, going through a chain-link fence and out another driveway. Scott and Stanger responded to the location and observed the Nis- san leaving the scene. Shortly thereafter, police officers received a report of a car on fire at the intersection of Princeton Lane and Mill- brook Drive in East Hartford.7 Police officers responded to the scene to find the Nissan on fire. They were able to recover from the vehicle an opened Lunchables food container from the floor under the driver’s seat, the vehicle’s gas cap, a box of matches, and a lighter. The officers subsequently were able to confirm that the fire was incendiary and that the likely ignition source was that of a person applying an open flame to the passenger seat’s fabric. The officers also took swabs of the inside of the Lunchables container and the vehicle’s gas cap. The swabs were submitted to the state forensics laboratory for testing. DNA profiles were generated from those samples and compared to a DNA profile that later was developed from a swab of the defendant’s saliva.8 The results indicated that the defendant was a DNA con- tributor to both samples.9 In addition, the CSLI obtained during the investigation confirmed that the defendant had been in the area of that intersection prior to the discovery of the burned Nissan. Police officers were also able to obtain the vehicle identification number of the Nissan and located its last 7 A witness who saw the car on fire and called 911 testified that he was unable to identify the person he saw get out of the car but informed the responding police officers that the individual was a Black male wear- ing a black mask and black hoodie who told the witness that his car was overheating before leaving the scene on foot. 8 Scott testified that a search warrant had been obtained for the buccal swab of the defendant’s saliva, which Scott executed on February 10, 2022. That buccal swab was sent to the state laboratory for forensic testing in order to generate the defendant’s DNA profile for comparison. 9 The defendant’s DNA profile was consistent with one of two contribu- tors to the DNA profile developed from the Lunchables container and of one of three contributors to the DNA profile developed from the gas cap.  State v. Fluker known owner, who informed the officers that he had sold the vehicle to Tiffany Castro in Bridgeport. Castro testified that, in August 2021, she sold the Nissan on Facebook Marketplace to a Black man who arrived in an Uber to make the purchase. Castro provided the police with two phone numbers that the buyer had used, one of which was associated with the defendant, and the Face- book messages between them. Because the purchaser, who was later identified as the defendant, used the name “Willie Mays” when communicating with Castro on Facebook, the police were able to link the Facebook profile for “Willie Mays” to the defendant through the account’s profile photo and associated email address (kwanze.fluker@facebook.com). The defendant was arrested pursuant to a warrant and subsequently charged in a long form information with one count of conspiracy to commit murder in violation of §§ 53a-48 (a) and 53a-54a (a) (count one), one count of arson in the second degree in violation of § 53a-112 (a) (1) (B) (count two), one count arson in the third degree in violation of General Statutes § 53a-113 (a) (count three), and one count of tampering with or fabricating physical evidence in violation of § 53a-155 (a) (1) (count four). Fol- lowing a jury trial during several days in July and August 2023, the defendant was found guilty of conspiracy to commit murder, arson in the second degree, and tamper- ing with or fabricating physical evidence.10 On October 12, 2023, the trial court, Schuman, J., sentenced the defendant to thirty-five years of incarceration.11 This appeal followed. Additional facts and procedural history will be set forth as necessary. 10 Because the jury found the defendant guilty of arson in the second degree, it did not consider the charge of arson in the third degree, and, therefore, count three was merged with count two. 11 The trial court sentenced the defendant to twenty years of incar- ceration on the charge of conspiracy to commit murder and fifteen years of incarceration on the charge of arson in the second degree, to run consecutively to each other. In addition, the court sentenced the defendant to five years of incarceration on the charge of tampering with or fabricating physical evidence, to run concurrently, for a total effective sentence of thirty-five years of incarceration.  State v. Fluker I The defendant first claims that the trial court improp- erly denied his motion for a mistrial. The defendant contends that the court should have declared a mistrial because Scott’s testimony that the DNA obtained from the Lunchables container matched the DNA profile of a “known felon” and that Scott’s subsequent identification of that person as the defendant was so prejudicial that the testimony deprived the defendant of his due process right to a fair trial. We disagree. The record reveals the following additional facts and procedural history that are relevant to the resolution of this claim. Scott testified during the state’s case-in-chief that a search warrant was obtained for the Nissan and that, on September 22, 2021, officers with the major crimes squad conducted a search of the vehicle. Scott further testified that a Lunchables food container was recovered from the vehicle and that a swab was taken from that container and sent to the state forensics labo- ratory for DNA testing. The prosecutor asked Scott to discuss a DNA “hit” notification generated by the Combined DNA Index System (CODIS).12 The following colloquy took place: “[The Prosecutor]: At some point during the course of this investigation, and I’m going to ask you to tell me if you recall when, were you notified by the state lab of a DNA match or DNA hit from the Lunchable[s] [container]? “[Scott]: I was notified of a DNA—it was considered a CODIS hit. “[The Prosecutor]: Okay. “[Scott]: And I was informed that it matched a record on file for a known felon. 12 “CODIS contains DNA profiles from unsolved crimes and compares them to known samples from convicted felons that are periodically added to the database.” (Internal quotation marks omitted.) Jones v. State, 237 Conn. App. 737, 739 n.2, 353 A.3d 76, cert. denied, 354 Conn. 928, 353 A.3d 847 (2026).  State v. Fluker “[The Prosecutor]: Okay. I’m going to ask the court to— “[Defense Counsel]: Objection, Your Honor. “[The Court]: The objection was relevance? Overruled. “[The Prosecutor]: Who was that individual that was named? “[Scott]: It was named Kwanze Fluker.” The defendant did not object further, and the prosecu- tor’s direct examination of Scott continued. The trial court later met with counsel at a sidebar conference before excusing the jury for the day. Once the jury was excused, the defendant orally moved for a mistrial based on Scott’s testimony, arguing that the testimony con- stituted “a very direct implication that [the defendant] was a known felon,” which was “information not in the record” that was unduly prejudicial, especially given that the defendant did not intend to testify in order to prevent such evidence from being elicited. The prosecu- tor argued that Scott’s testimony only implied, rather than directly asserted, that the defendant was a known felon and that the use of “felon . . . was in connection with CODIS” rather than the defendant. The prosecutor asked the court to give a curative instruction if the court believed that there was “any kind of prejudice” and to strike the remark from the record. The prosecutor also offered to call a witness from the state forensics labo- ratory who would testify that CODIS contains profiles other than those of convicted felons. The trial court noted that it “did not hear the wit- ness refer to felons” and that it had “misconstrued the defendant’s objection.” The court further explained: “I didn’t know that you were objecting to the reference to felon, and I should have sustained the objection. But, given the situation we’re in now, I think the curative instruction is sufficient to address the situation, know- ing that jurors are presumed to follow instructions, and I can also repeat the instruction in the closing . . . charge  State v. Fluker to the jury. I also think that testimony from the [state’s proposed] DNA witness . . . as to the type of information that CODIS includes and [that it] is not limited to known felons will help meliorate the situation. And even [defense counsel] agrees that there was no direct statement that the defendant is a known felon, although the witness’ testimony may have created that—may have implied that.” The court then asked defense counsel whether it should give a curative instruction to the jury. Defense counsel requested that the court replay the recording of Scott’s testimony. After the playback of the testi- mony, the court explained that, “the witness stated that the DNA matched a record for a known felon and then after that said the individual was [the defendant].” In response, defense counsel argued: “For a known felon, and that individual is [the defendant], sounds to me like directly saying that [the defendant] is a known felon.” The court agreed but stated that the appropriate remedy was a curative instruction and afforded the defendant the opportunity to consider the proposed remedy overnight. The following day, the defendant declined the trial court’s offer to give the jury a curative instruction, reasoning that there was no curative instruction that could cure the defect created by Scott’s testimony and that “any curative instruction might just highlight the information.” The court then asked, “[a]nd even an instruction to the effect that the jury should disregard the testimony from . . . Scott concerning why there was a hit on the CODIS network and that the jury should draw no inference of guilt from the CODIS hit, you’re declining or you ask that I not give that instruction?” Defense counsel answered affirmatively, again reason- ing that “it would just draw attention to that fact . . . .” The prosecutor argued that the motion for a mistrial should be denied but that she would “join in the applica- tion for a cautionary instruction” should the defendant choose to seek one. The prosecutor then offered again to call a witness from the state forensics laboratory to testify regarding the information contained in CODIS  State v. Fluker and requested that the court strike Scott’s remark from the record. The trial court then denied the defendant’s motion for a mistrial. The court explained: “One, I am striking the testimony of the witness that the DNA obtained from the evidence matched a record for a known felon, which means that the state cannot rely on it for closing argument . . . . Second, I will note that [the] testimony was unsolicited by the state. The state’s question did not call for a response that the DNA matched the record for a known felon. So, there was no prosecutorial misconduct involved. Third, I am more than willing to charge the jury or caution the jury . . . that they should disregard that testimony, that they should draw no inference of guilt from the CODIS hit. They should rely on the pre- sumption of innocence. But the defendant has asked that I not give that instruction, and I will adhere to the defendant’s request in that regard. But I am certainly willing to do so. I’m also willing to do so in the closing charge to the jury and will entertain a request from the defendant or the state to charge in that regard and see what the positions of the parties are at that time. I don’t feel, although the evidence was inadmissible, that it’s shocking; it’s not, as defense counsel says, it’s not sur- prising that a CODIS hit would be from a known felon, but I agree that it’s inadmissible.” The trial court also reasoned that it believed that the testimony by the state’s witness concerning CODIS would further ameliorate any resulting prejudice. The state then called Megan Olt, a DNA analyst and forensic sci- ence examiner with the state forensic science laboratory, who testified that CODIS is “a database of known and unknown profiles that are searched regularly,” which includes individuals who do not have prior criminal records, and that “[t]he purpose of the database is to provide investigative leads either linking a case to [a] case or a case to a known profile.” After the close of evidence, the trial court discussed the jury charge with counsel and the defendant. The  State v. Fluker following colloquy between the court, defense counsel, and the prosecutor occurred: “The Court: . . . The only issue that I want to make sure of at this point, because it’s really a request not to charge on something that I would charge on, is this: I had proposed in my charge two sentences under a title called specific evidence, the title could change, but those two sentences are as follows. You should disregard any testimony of . . . Scott concerning the background of the persons on the CODIS database. You may draw no infer- ence of guilt from the fact that the defendant’s name was on the CODIS database. It’s my understanding . . . that [the defendant] do[es] not want me to give that charge. “[Defense Counsel]: That’s correct, Your Honor. We would decline that instruction for the reason that . . . what the jury has heard they’ve already heard, and we can’t put the cat back in the box, basically. And my con- cern is, if I have the instruction there, it would simply draw attention to it again. “[The Court]: All right. That’s a choice you can make. What’s the state’s position on that? “[The Prosecutor]: Judge, the state had requested that you read the instruction, but as long as it is on the record, what you were going to read, and the defendant declines it, then I think the record is clear.” After the charge conference,13 the defendant orally renewed his motion for a mistrial, which the trial court 13 The record indicates that a charge conference was conducted in chambers off the record. After the close of evidence on August 4, 2023, the court summarized the charge conference on the record, explaining that “[it] [had] sent an initial draft of the substantive part of the charge to the jury to counsel by email approximately a week [prior]. Then [it] met with counsel briefly . . . [on August 3, 2023] in chambers. [They] discussed the charge. [The court] sent a revised and complete copy of the draft charge to counsel [on August 3, 2023] at the close of business. Then [they] met [the] morning [of August 4, 2023], and [the court] discussed the charge with counsel, [the court] did make some changes in light of that discussion and [it] sent a final draft to counsel . . . [via] email. [Accordingly] [the court] believe[d] [that] [it] ha[d] satisfied the Practice Book requirement for a charge conference.”  State v. Fluker “denied essentially for the same reasons [it] denied [the motion] earlier in that the answer was unsolicited by the state and [the court had] offered . . . twice to provide a curative instruction to the jury. Defense [counsel] declined to authorize [the court] to do so.” The court also explained that Olt’s testimony regarding the CODIS database would mitigate any prejudice. Finally, at sen- tencing, the defendant again renewed his motion for a mistrial, which the court also denied, reasoning that it had “made the right decision in denying the motion for a new trial [and] offered cures to the defendant, which the defendant declined to accept.” On appeal, the defendant claims that the trial court improperly denied his motion for a mistrial. “Practice Book § 42-43 provides in relevant part: Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . . The defendant bears the burden to establish prejudice. . . . We review a trial court’s ruling on a motion for a mistrial under the abuse of discretion standard. . . . When reviewing a ruling on a mistrial motion, we must ask whether the trial court considered the total- ity of the circumstances in arriving at its decision. . . . Further, our review must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Every reasonable presumption will be given in favor of the trial court’s ruling . . . . “Furthermore, [w]hile the remedy of a mistrial is per- mitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are viti- ated. . . . If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On  State v. Fluker appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances [that] may arise during the trial in which his . . . function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evalu- ate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice.” (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) State v. Nichols, 226 Conn. App. 359, 368–70, 317 A.3d 861 (2024). On appeal, the defendant argues, as he did before the trial court, that Scott’s testimony that the DNA profile generated from the swab of the Lunchables container “matched a record on file for a known felon” and that the individual “was named Kwanze Fluker” improperly exposed the defendant’s criminal history to the jury and “was not only inadmissible, but it was highly preju- dicial and stigmatized the defendant to the jury,” and, therefore, the court should have granted his motion for a mistrial. We agree with the defendant, and the court, that Scott’s testimony that the DNA profile from the Lunchables swab “matched a record on file for a known felon” was inadmissible.14 See, e.g., State v. Collins, 206 Conn. App. 438, 452, 260 A.3d 507 (“[a]s a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible” (internal quotation marks omitted)), cert. denied, 339 Conn. 914, 262 A.3d 135 (2021). Nev- ertheless, because Scott’s remark was unprompted by the state, the remark was an isolated occurrence, the court struck the challenged remark so that the state could not rely on it during closing argument to the jury, Olt’s testimony helped to mitigate any prejudice, the state’s case was relatively strong, and the court repeatedly offered curative instructions that were rejected by the defendant, we do not conclude that the remark resulted in substantial and irreparable prejudice that deprived the defendant of his due process right to a fair trial, 14 The state rightfully does not contend otherwise.  State v. Fluker and, therefore, we agree with the court that a mistrial was unwarranted in this case. Our reviewing courts have declined to find an abuse of the trial court’s discretion in denying a motion for a mistrial in cases in which a witness or prosecutor briefly referenced a defendant’s prior criminal misconduct or conviction in the presence of the jury. See, e.g., State v. Fleming, 198 Conn. 255, 264–66, 502 A.2d 886 (curative instructions were sufficient to eliminate any prejudice resulting from witness testimony “that the defendant had ‘talked about getting down in robbery again’ ”), cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Tarver, 166 Conn. App. 304, 322, 328–30, 141 A.3d 940 (curative instructions obviated any prejudice from witness’ testimony that “ ‘[the defen- dant] went to jail for robbery’ ” and had previously been in jail), cert. denied, 323 Conn. 908, 150 A.3d 683 (2016); State v. Vitale, 76 Conn. App. 1, 10–13, 818 A.2d 134 (curative instructions remedied prejudice from witness’ statement that “[the defendant said], ‘I’m on parole, I’m going to jail’ ”), cert. denied, 264 Conn. 906, 826 A.2d 178 (2003). In each of those cases, the trial court promptly issued a curative instruction and struck the testimony. See State v. Tarver, supra, 328 (“the giving of a curative instruction . . . carries great weight in our determination of whether the court’s denial of a motion for a mistrial was an abuse of discretion”). In this case, however, the defendant was given several opportunities to have the court issue such an instruction but declined each time.15 By declining the court’s repeated offers for curative instructions, “the defendant made a legitimate tactical decision not to emphasize the testimony. This 15 Although the trial court initially overruled the defendant’s objec- tion and did not strike the testimony or have the opportunity to issue a curative instruction until the following day, fault cannot be attributed to the court. Defense counsel did not state the basis for the objection. In addition, defense counsel did not clarify the actual grounds for her objection when the court clearly indicated that it believed that she was objecting on relevance grounds. She also did not object to Scott’s subsequent identification of the defendant as the DNA match, which would have given her another opportunity to make her objection clear.  State v. Fluker court will not second-guess such decisions on appeal.” (Footnote omitted.) State v. Mitchell, 110 Conn. App. 305, 314–15, 955 A.2d 84, cert. denied, 289 Conn. 946, 959 A.2d 1012 (2008). The defendant acknowledges that he declined the trial court’s repeated offers of a curative instruction but nevertheless contends that “[n]o curative instruction could cure the prejudice, as any curative measure would only draw more attention to the damaging testimony.” In the present case, the court reasonably could have concluded that, even if Scott’s remark was injurious enough to necessitate an instruction, a mistrial was unwarranted. Although it is true that, in some cases, a statement may be so prejudicial that even a curative instruction would be insufficient to dispel the prejudice, that is not the case here. We repeatedly have stated that “[d]efense counsel cannot opt for a mistrial instead of a curative instruction, as if the two were interchangeable. If defense counsel decides to move for [a] mistrial and altogether eschews the instruction, the trial court can- not be compelled by that decision to go further than it otherwise would.” (Internal quotation marks omitted.) State v. Collins, supra, 206 Conn. App. 454. We need not speculate as to the potential effect of the proposed curative instructions. For the foregoing reasons, we conclude that the defen- dant has failed to show that the trial court abused its discretion in denying his motion for a mistrial on the basis of Scott’s testimony. II The defendant also claims that he was deprived of his due process right to a fair trial because the prosecutor engaged in impropriety during the trial and closing argu- ment by improperly appealing to the jurors’ emotions through her stigmatization of the defendant because of his criminal history and her invocation of sympathy for the victim, as well as by commenting on facts not in evidence. We agree that the prosecutor made certain  State v. Fluker improper statements during closing arguments but conclude that those improprieties did not deprive the defendant of a fair trial. Before addressing the defendant’s specific claims on appeal, we first set forth general principles governing our review of claims of prosecutorial impropriety. “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . 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 defendant 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 contributed to a due process violation involves a separate and distinct inquiry. . . . “[O]ur determination of whether any improper conduct by the [prosecutor] violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that [impropriety] was objected to at trial. . . . These factors include: [1] the extent to which the [impropriety] was invited by defense conduct or argument . . . [2] the severity of the [impropriety] . . . [3] the frequency of the [impropriety] . . . [4] the centrality of the [impropriety] to the critical issues in the case . . . [5] the strength of the curative measures adopted . . . and [6] the strength of the state’s case. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety] depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties. . . . Under the Williams general due process standard, the defendant has the burden to show both that the prosecutor’s conduct was improper and that it caused prejudice to his defense. . . . The two steps of [our] analysis are separate and distinct, and we may reject the claim if we conclude [that] the defendant  State v. Fluker has failed to establish eith