State v. Guerrero

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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. Guerrero STATE OF CONNECTICUT v. LEON L. GUERRERO (SC 21059) Mullins, C. J., and McDonald, D’Auria, Ecker, Alexander, Dannehy and Bright, Js.* Syllabus Convicted, after a jury trial, of murder in connection with the shooting death of the victim, the defendant appealed. The shooting arose from a verbal exchange and physical altercation involving the defendant, F and M. During an argument in which the defendant and F exchanged insults, the defendant indicated that he had a gun in his car, which was parked nearby. The defendant and F began fighting. M then attempted to break up the fight, and the defendant challenged M to fight. Both F and M tried to leave in their car, but the defendant engaged them further, and a melee involving the defendant, F and M ensued. At some point, the defendant retrieved his gun, and then others, including the victim, arrived on the scene, ran toward the melee, and, as they got close, the defendant fired his gun. The bullet ultimately struck the victim and killer her. At the defendant’s probable cause hearing, at which the state called M to testify, M invoked his privilege against self-incrimination, and the state granted M immunity in exchange for his testimony and sought an order to compel him to testify pursuant to statute (§ 54-47a). The trial court granted the state’s request and ordered M to testify, but defense counsel withdrew his request for a probable cause hearing before any testimony was presented. To ensure that M would testify for the state at the defendant’s criminal trial, M was arrested pursuant to a material witness warrant. M ultimately testified against the defendant after being granted immunity. At trial, the defendant sought to establish a claim of self-defense, but the jury rejected that claim and found him guilty of murder under a transferred intent theory. On appeal, the defendant claimed, inter alia, that the state had failed to meet its burden of proving beyond a reasonable doubt that the provocation exception to self-defense defeated his self-defense claim and that the prosecutor had engaged in certain prosecuto- rial improprieties. Held: Because the evidence in the record was sufficient for the jury to have found that the defendant did not reasonably believe that deadly physical force was necessary to defend himself, the defendant’s self-defense claim was unavailing, and, therefore, it was not necessary for the state to prove that the provocation exception, or any other exception, to self-defense applied in order to secure the defendant’s murder conviction. The jury reasonably could have found that any belief the defendant had that deadly force was necessary to defend himself was unreasonable in light of the evidence adduced at trial, including that neither M nor F was armed with a weapon, there was no indication to the defendant that M or F was armed, and * The listing of justices reflects their seniority status on this court as of the date of oral argument.  State v. Guerrero neither M nor F ever attempted to use deadly force against the defendant or to inflict great bodily harm on him. The prosecutor did not engage in prosecutorial impropriety that deprived the defendant of his due process right to a fair trial when, during rebuttal argument, he stated to the jury that M was reluctant to testify against the defendant because of a purported familial connection to the defendant, specifically, that the defendant was the biological father of L, a child whom M considered to be his stepdaughter. The prosecutor’s remark regarding M’s reluctance to testify did not improp- erly rely on facts not in evidence, as the jury heard testimony that M was reluctant to testify because of L and her relationship to the defendant. Moreover, the prosecutor’s remark regarding M’s reluctance to testify did not constitute a personal opinion concerning M’s credibility, as the pros- ecutor neither vouched for M’s credibility nor implied that he had outside knowledge thereof, and, immediately prior to the challenged remark, the prosecutor informed the jury that it was the arbiter of witness credibility. Furthermore, the prosecutor did not improperly appeal to the emotions, pas- sions, and prejudices of the jurors when he referred to the familial relation- ship between M and L, as the prosecutor did not attempt to gain sympathy for M by lingering on his relationship with L or by contending that M must be a great stepfather because he did not want to testify against L’s biological father but, rather, sought to encourage the jurors to consider the testimony M gave regarding his reluctance to testify and to assess his credibility on the basis of that testimony. The defendant could not prevail on his claim that the prosecutor, through a series of evidentiary maneuvers that prevented defense counsel from ask- ing M about his prior invocation of his privilege against self-incrimination, improperly misled the jury regarding M’s reluctance to testify against the defendant and, therefore, had a duty to correct M’s testimony. There was no evidence to suggest that M’s testimony regarding his concern for L was false, and, although defense counsel was barred from questioning M about his invocation of the privilege against self-incrimination, counsel was not prohibited from eliciting testimony from M that his prior reluctance to testify was attributable to his fear of exposure to criminal liability in con- nection with the altercation that resulted in the victim’s death. In addition, because M, in exchange for his testimony, was afforded immu- nity that shielded him from prosecution related to the victim’s death, it was unlikely that M’s reluctance to testify against the defendant was due to his concern about future criminal charges rather than because of his connection to the defendant through L. Argued March 6—officially released September 8, 2026  State v. Guerrero Procedural History Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Vitale, J.; verdict and judgment of guilty, from which the defendant appealed. Affirmed. Norman A. Pattis, for the appellant (defendant). Meryl R. Gersz, assistant state’s attorney, with whom, on the brief, were John Doyle, Jr., state’s attorney, and Gregory L. Borrelli and Melissa Holmes, senior assistant state’s attorneys, for the appellee (state). Opinion McDONALD, J. The defendant, Leon L. Guerrero, appeals from the trial court’s judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a (a). He claims that the state failed to meet its burden of proving beyond a reasonable doubt that the provocation exception to self- defense was applicable to the case. The defendant further claims that the judgment should be reversed because the prosecutor engaged in prosecutorial impropriety, thereby depriving the defendant of his due process right to a fair trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. During the night of April 22, 2023, and into the early morning hours of April 23, 2023, the defendant had several arguments over the phone with Susanna Santiago, who is the mother of the defendant’s eight year old daughter, Leanna. Following the phone calls, Santiago asked her boyfriend, Hector Martinez, to pick up Leanna from the home of the defendant’s girlfriend, Fernanda Salazar, which he previously had done on sev- eral occasions. Martinez’ friend, Rafael Fuentes, drove Martinez to Salazar’s house in a white BMW. After Leanna got into the backseat of the BMW, the defendant, who had been sitting in his green Honda in Salazar’s  State v. Guerrero driveway, revved the engine of his car and pulled up to the driver’s side of the BMW. The defendant and Fuentes began arguing and exchanging insults. After the defendant moved his Honda to the side of the road, the two men exited the vehicles and continued argu- ing in the street, calling each other names and inviting each other to fight. Martinez exited the BMW and got between the defendant and Fuentes, intending to stop them from physically fighting. Undeterred, the defen- dant and Fuentes continued arguing, with the defendant telling Fuentes that he “left the strap in the car,” i.e., that there was a gun in the defendant’s car. While the men were arguing, Leanna was screaming from the BMW for the men to stop. When Martinez walked away from the argument and toward the BMW to check on her, the defendant and Fuentes began punching each other. Martinez again tried to break up the fight and, with the hope of calming them down, reminded the two men that Leanna was in the car. After finally separating the men, Martinez repeatedly told Fuentes to get back in the BMW. Before doing so, Fuentes said to the defendant, “[t]he first thing you did was grab a blick; I came with nothing.” “Blick” is a slang term for a gun. The defendant responded, “it’s still there,” indicating that his gun was, indeed, in his car. Martinez continued to try to calm the situation, but, because the defendant was convinced that Martinez had held him down during the fight with Fuentes, the defendant challenged Martinez to fight. Although Mar- tinez yelled at the defendant because he was upset that Leanna had to witness the fighting, he did not fight the defendant. Salazar arrived on the scene and encouraged Martinez and Fuentes to leave. With Leanna and Martinez in the BMW with him, Fuentes started to drive away. The defendant yelled further insults at Martinez and Fuentes, told them, “[i]t’s on for both of y’all,” and punched the driver’s side front window of the BMW, next to where Fuentes  State v. Guerrero was sitting. Fuentes stopped the car, and Martinez and Fuentes both got out. The defendant ran toward his own car, and the others followed. There was a struggle at the open driver’s door of the defendant’s car, involving the defendant, Martinez, Fuentes, and Salazar. Leanna had also exited the BMW and ended up on the ground in the middle of the struggle. As the struggle continued, a third car arrived on the scene; Yanbelyz Rodriguez was the driver, and Santiago and the victim, Tayna Rodriguez, were the passengers. Santiago and the victim ran toward the melee and arrived just as the defendant fired his gun. The bullet passed through the victim’s left armpit area, neck, and chin, ultimately lodging in her head and killing her. Follow- ing the shooting, the defendant remained on the scene, where he was arrested. The state charged the defendant with murder in violation of § 53a-54a (a).1 At trial, the defendant, who did not testify, sought to establish a claim of self-defense. At the conclusion of the trial, the jury rejected the defendant’s self-defense claim and found him guilty of murder. The trial court sentenced the defendant to forty years of incarceration. The defendant then appealed to the Appellate Court, and the appeal was transferred to this court. See General Statutes § 51-199 (b) (3); Practice Book § 65-4. Additional facts and procedural history will be set forth as necessary. I We first address the defendant’s claim that the state failed to present sufficient evidence to prove beyond a reasonable doubt that the defendant forfeited his right to defend himself under the provocation exception to self-defense. “The standard of review governing a chal- 1 The state charged the defendant under a transferred intent theory— that is, the state alleged that the defendant, acting with the intent to cause the death of another person, caused the death of the victim by means of the discharge of a firearm. See General Statutes § 53a-54a (a).  State v. Guerrero lenge to the sufficiency of the evidence to defeat a claim of self-defense . . . is the same [as the] standard used when examining claims of insufficiency of the evidence. . . . First, we construe the evidence in the light most favor- able to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citation omitted; internal quotation marks omitted.) State v. Johnson, 351 Conn. 53, 62–63, 328 A.3d 143 (2025). “In reviewing the sufficiency of the evidence, [w]e do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Ramsey, 352 Conn. 210, 232, 336 A.3d 455 (2025). Thus, when a defendant challenges the sufficiency of the evidence to defeat a claim of self-defense, “we construe the evidence and all the reasonable inferences drawn therefrom in the light most favorable to supporting the jury’s rejection of the defendant’s defense.” (Internal quotation marks omitted.) Id. “In Connecticut, it is well settled that self-defense is a justification for engaging in otherwise criminal conduct.” (Internal quotation marks omitted.) State v. Williams, 352 Conn. 104, 115, 335 A.3d 792 (2025). Pursuant to General Statutes § 53a-19 (a), a defendant’s use of deadly physical force is justified on the ground of self-defense only if (1) the defendant actually believed that his attacker was using or was about to use deadly physical force against him, or was inflicting or about to inflict great bodily harm on him, (2) a reasonable person,  State v. Guerrero viewing all the circumstances from the defendant’s point of view, would have shared that belief, (3) the defendant actually believed that deadly physical force was necessary to defend himself, and (4) a reasonable person, viewing all the circumstances from the defendant’s point of view, also would have shared that belief. See, e.g., State v. Johnson, supra, 351 Conn. 61; see also, e.g., State v. Hughes, 341 Conn. 387, 398–99, 267 A.3d 81 (2021). Section 53a-19 also sets out exceptions to self-defense that include, as relevant to this case, a provocation excep- tion. Under § 53a-19 (c), “a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person . . . .” Once a criminal defendant raises a justification defense, the state bears the burden of disproving that defense. “To sustain its burden, the state must disprove beyond a rea- sonable doubt any of the components of these defenses or establish beyond a reasonable doubt that any of the statutory exceptions . . . applied.” (Internal quotation marks omitted.) State v. Johnson, supra, 351 Conn. 62. “In assessing the sufficiency of the evidence, we must focus on the theory of self-defense . . . that was presented at trial.” Id. On appeal, the defendant claims that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the provocation exception to self- defense applied. Specifically, the defendant contends that there is no “universe” in which “punching a car window and uttering hateful speech” amount to conduct that constitutes provocation under § 53a-19 (c) (1). The state argues in response that sufficient evidence existed for the jury to conclude beyond a reasonable doubt that the defendant did not act in self-defense and that we there- fore need not reach whether the provocation exception to self-defense applied. We agree with the state that there was sufficient evidence to disprove the defendant’s self-  State v. Guerrero defense claim. “As a result, we need not consider whether the state also proved beyond a reasonable doubt that a statutory exception to self-defense applied.” State v. Ramsey, supra, 352 Conn. 230. We begin our analysis by construing the record in the light most favorable to sustaining the verdict. See, e.g., State v. Johnson, supra, 351 Conn. 63. The jury had before it evidence that Martinez and Fuentes knew that the defendant had a gun in his car. Martinez testi- fied that he knew that the defendant was armed because the defendant had said so: “He definitely had a gun. He told us he had a gun.” The prosecutor introduced video evidence that is consistent with Martinez’ testimony. In one of the videos, which was taken by a witness to the altercation, the defendant can be heard saying to Fuentes that he “left the strap in the car,” and, later, Fuentes can be heard saying to the defendant, “[t]he first thing you did was grab a blick . . . .” As previously noted, “strap” and “blick” are both slang terms for a gun. The jury also had before it evidence that neither Mar- tinez nor Fuentes was armed. During the altercation, Fuentes said to the defendant, in reference to the “blick,” that he “came with nothing.” This is consistent with the video evidence, which does not show a second gun during or after the altercation. Additionally, several members of law enforcement testified that the defendant’s gun was the only gun that was part of the altercation. Detective David Parker testified that, other than the defendant’s gun, no other firearms were located on the scene. Officer Ismail Abdussabur testified that the defendant did not say anything to him that led him to believe that there was another firearm on the scene. Officer Martin Feliciano also testified that the defendant did not say anything to indicate that there was potentially another firearm on the scene. Moreover, there was evidence before the jury that the defendant told police officers that he did not see another gun.  State v. Guerrero The prosecutor presented evidence that Martinez was not a participant in the fight but, rather, was attempt- ing to stop the defendant and Fuentes from fighting. Specifically, Martinez wanted to stop the fight because Leanna was present. The prosecutor also introduced video evidence showing that Martinez was trying to keep the defendant and Fuentes calm. Further, the prosecutor presented video evidence showing that, immediately before the shooting, Martinez was grabbing and pulling at the defendant, not attempting to inflict harm on him. That video evidence, construed in the light most favor- able to sustaining the verdict, also shows that Fuentes was attempting to stop the defendant from getting his gun right before he fired it. The second step of our analysis requires us to “deter- mine whether upon the facts so construed and the infer- ences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evi- dence established guilt beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) State v. Johnson, supra, 351 Conn. 63. If the jury credited Martinez’ tes- timony, it reasonably could have inferred that, because Martinez and Fuentes knew that the defendant had a gun in his car, they were trying to stop him from grabbing his gun and were not attempting to use deadly force against him or to inflict great bodily harm on him. The jury rea- sonably could have drawn the same inference from the video evidence of the struggle that occurred immediately before the shooting. If the jury found that Martinez and Fuentes were merely trying to stop the defendant from getting his gun, it reasonably could have concluded that any belief that the defendant had that deadly force was necessary to defend himself was unreasonable. The jury also reasonably could have found that the defendant’s belief was unreasonable if it credited the tes- timony of Martinez, along with that of Detective Parker and Officers Abdussabur and Feliciano, indicating that  State v. Guerrero neither Martinez nor Fuentes was armed. The jury could have drawn the same inference from the video evidence, which does not show Martinez or Fuentes ever holding a gun. The jury reasonably could have concluded that, in the absence of the threat of being shot, any belief that the defendant had that he needed to defend himself with deadly force was unreasonable. In its totality, the evidence provided ample support for the jury to have concluded that the defendant did not reasonably believe that the degree of force he used was necessary to defend himself. Thus, the defendant’s use of deadly physical force was not justified. See, e.g., State v. O’Bryan, 318 Conn. 621, 632–33, 123 A.3d 398 (2015) (“if a jury determines that the defendant’s honest belief that he had needed to use deadly force, instead of some lesser degree of force, was not a reasonable belief, the defendant is not entitled to the protection of § 53a- 19” (internal quotation marks omitted)). Because there was sufficient evidence to disprove beyond a reasonable doubt the defendant’s self-defense claim, there was no need for the state to demonstrate that a statutory excep- tion applied. Accordingly, the defendant’s claim fails. II We next consider whether the prosecutor deprived the defendant of his due process right to a fair trial by engag- ing in prosecutorial impropriety. The following addi- tional facts and procedural history are relevant to our resolution of this claim. The prosecutor called Martinez as a witness at the defendant’s probable cause hearing. The presiding judge advised Martinez that he “may be exposed [to] criminal liability” based on any statements that he makes regarding the altercation that resulted in the death of the victim, and Martinez invoked his fifth amendment privilege against self-incrimination. After a brief recess, the prosecution granted Martinez immunity in exchange for his testimony and sought an order to compel him to  State v. Guerrero testify pursuant to General Statutes § 54-47a. The trial court granted the prosecution’s request and ordered Mar- tinez to testify. At that point, defense counsel withdrew his request for a probable cause hearing. The hearing therefore was terminated, and the case proceeded to trial. The state had unsuccessfully attempted to serve a subpoena on Martinez to testify at the defendant’s jury trial. The trial court then issued, pursuant to General Statutes § 54-82j, a material witness warrant for Marti- nez’ arrest. Martinez was subsequently arrested outside of his home and brought to the courthouse to testify. Pursuant to § 54-47a, the state then filed with the trial court an application to grant Martinez immunity in exchange for his testimony about the incident. The court granted the application. Relevant to the issues in this appeal, the beginning of the prosecutor’s direct examination of Martinez focused on the material witness warrant and immunity. Specifi- cally, the prosecutor asked, “[y]ou don’t want to be here, correct?” Martinez responded, “[n]o.” He then testi- fied about his past interactions with the prosecutor’s office, including that he was granted immunity for his testimony against the defendant at the 2023 probable cause hearing. On cross-examination, defense counsel elicited fur- ther testimony with respect to the trial court’s finding that the material witness warrant and order requiring Martinez to testify were necessary because there was no other means of obtaining sufficient information from Martinez. On redirect examination, the prosecutor elicited the following testimony about Martinez’ relationships in the context of his reluctance to testify: “Q. . . . Martinez, we were talking about you not want- ing to testify. Your daughter, again, is who? Your step- daughter. My apologies.  State v. Guerrero “A. Leanna. “Q. And who is she in relation to the defendant? “A. Her dad. “Q. Biological? “A. Yes. “Q. And who are you currently in a relationship with? “A. [Santiago]. “Q. And what is her relationship to the defendant? “A. Baby mom. “Q. Of? “A. Of Leanna. “Q. Okay . . . and you’re still currently living with [Santiago]? “A. Yes. “Q. And do you share time with Leanna? “A. Sometimes, yes. “Q. Okay. So, being here would make you testify against your stepdaughter’s father? “A. Yes.” On recross-examination, defense counsel followed up on Martinez’ reluctance to testify: “Q. So, you didn’t want to testify [at trial] because you didn’t want to testify against your stepdaughter’s father, correct? “A. Correct.” When defense counsel attempted to question Marti- nez about the court orders requiring him to testify, the prosecutor rose to his feet, and the trial court called a recess, during which the jury and Martinez were excused. The prosecutor explained that, “[d]epending on what the  State v. Guerrero next question was, and based on our colloquy at sidebar, if it hinges on any . . . indication to the jury about . . . Martinez’ invocation of the fifth amendment, I think that would be improper for the jury to hear.” The trial court stated that it “assumed that was coming . . . because [defense counsel] had the [order compelling Martinez to testify] marked for [identification as an exhibit]” and that document “twice [references] the . . . fifth amend- ment . . . .” Defense counsel responded that “[t]he next question would have been, ‘does that document say any- thing about your concerns . . . about your stepdaughter and her father . . . ?’ ” Counsel also acknowledged that he “heard” the court and “respect[ed] the orders of the court . . . .” The trial court indicated that defense counsel could question Martinez as to whether the court orders referenced Martinez’ concerns about his stepdaughter, Leanna, or other members of his family. After the recess, the jury and Martinez returned, and defense counsel continued with his recross-examina- tion of Martinez. Counsel asked Martinez: “I believe, in response to some questions from the [prosecutor], you testified that you were reluctant to testify in this case because you did not want to offer testimony involving the father of your stepdaughter, correct?” Martinez answered, “[y]es.” Defense counsel then showed Martinez the defendant’s exhibit B, which was the order requiring Martinez to testify at the defendant’s probable cause hearing. After giving Martinez time to read the docu- ment, defense counsel asked about it: “Q. Is that the order . . . under authority of which you testified in the summer of 2023? “A. Correct. “Q. Fair to say that . . . nowhere in there is anything mentioned about your reluctance to testify involving the father [of] your stepdaughter, correct?  State v. Guerrero “A. Correct.” Defense counsel then presented Martinez with the defendant’s exhibit A, the trial court’s order requiring him to testify at the defendant’s trial, and gave him time to read it. The following exchange occurred between defense counsel and Martinez: “Q. . . . [I]s it fair to say that nowhere in that docu- ment . . . is mentioned your reluctance to testify in these proceedings out of concern for the father of your step- daughter or your stepdaughter, correct? “A. Correct.” Defense counsel also asked Martinez whether the two court orders contained “certain promises . . . that noth- ing [Martinez] say[s] [at trial] can be used to prosecute [him] for any crime,” and Martinez answered, “[c]orrect.” During closing argument, defense counsel referenced Martinez’ immunity deal: “Then there’s [Martinez], the immunity agreement. The state said it can’t obtain suf- ficient information as to whether a crime was committed without his testimony. The identity of the person or persons who may have committed a crime requires [Mar- tinez] to testify. Are you a good judge of credibility?” During his rebuttal argument, the prosecutor again referenced Martinez’ reluctance to testify. Specifically, the prosecutor said: “The judge will tell you, ‘you alone are the ultimate judge of [the credibility] of witnesses. You alone determine who to believe.’ What I now want to address with you is who you should believe and, more importantly, why you should believe. Ask your- selves: what is . . . Martinez’ motivation to lie? Prior to this incident, he had no real relationship with the defendant. [The defendant] admitted they never had a problem in the past. [Martinez] didn’t want to testify because of the nature of his family’s relationship to the defendant. He’s testifying against his step[daughter’s] [father], the father who shares a child with [Martinez’]  State v. Guerrero current girlfriend. . . . Most importantly, [Martinez] had to be arrested and brought into court before you in handcuffs to testify. He told you, the first thing out of his mouth was, ‘I don’t want to be here.’ ” We begin with the applicable standard of review and controlling legal principles governing a claim of pros- ecutorial impropriety. “[E]ven in the absence of an objection,” a claim of prosecutorial impropriety “has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535–40, 529 A.2d 653 (1987).” (Internal quotation marks omit- ted.) State v. Sullivan, 351 Conn. 798, 809, 334 A.3d 446 (2025). In analyzing such a claim, we undertake a two step process: “First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety . . . deprived the defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) Id., 810. “It is the defendant’s burden to show that the prosecutor’s conduct was improper and that it constituted a denial of due process.” State v. Elmer G., 333 Conn. 176, 194, 214 A.3d 852 (2019). “It is well established that prosecutorial impropriety can occur during final or rebuttal argument.” State v. Ortiz, 343 Conn. 566, 580, 275 A.3d 578 (2022). How- ever, “[w]hen making closing arguments to the jury, [counsel] must be allowed a generous latitude in argu- ment . . . . The exact 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 force- fully, [provided the argument is] fair and based [on] the facts in evidence and the reasonable inferences to be drawn therefrom.” (Citation omitted; internal quota- tion marks omitted.) State v. Sullivan, supra, 351 Conn. 810. Nevertheless, as this court has emphasized, “the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention  State v. Guerrero from the facts of the case.” (Internal quotation marks omitted.) Id., 811. The defendant contends that, in stating during rebut- tal argument that Martinez did not want to testify during trial because of the nature of his family’s relationship to the defendant, the prosecutor mischaracterized Mar- tinez’ reluctance to testify and, therefore, committed prosecutorial impropriety. Specifically, the defendant contends that the prosecutor violated his right to a fair trial because the challenged argument improperly (1) referred to facts not in evidence, (2) expressed the pros- ecutor’s personal opinion as to Martinez’ credibility, and (3) appealed to the emotions, passions, and prejudices of the jurors. He also claims that the prosecutor purpose- fully misled the jury by mischaracterizing the evidence to conceal the real reason for Martinez’ reluctance to testify against the defendant, which the defendant contends was Martinez’ fear of criminal prosecution rather than his professed concern about testifying against the father of his stepdaughter, Leanna. The defendant argues that the prosecutor obscured Martinez’ real motivations by elicit- ing testimony from Martinez regarding his family related concerns, after the trial court had granted the state’s motion to preclude evidence regarding Martinez’ prior invocation of his privilege against self-incrimination at the defendant’s probable cause hearing. We will address each of these arguments in turn. It is well established that prosecutors, in fulfilling their duties, must confine themselves to the evidence in the record. See, e.g., State v. Singh, 259 Conn. 693, 717, 793 A.2d 226 (2002). Thus, during closing and rebuttal argument, “a prosecutor may not comment on evidence that is not a part of the record and may not comment unfairly on the evidence in the record.” State v. Fauci, 282 Conn. 23, 49, 917 A.2d 978 (2007). During rebuttal argument, the prosecutor stated that Martinez did not want to testify against the defendant “because of the nature of his family’s relationship to the defendant”; that is, Martinez did not want to testify  State v. Guerrero against the biological father of the child whom he con- sidered to be his stepdaughter. The defendant argues that Martinez “never testified that his reluctance to come to court to testify had anything to do with his relationship with either [Leanna] or [Santiago]” and that the prosecutor “made that up out of whole cloth . . . .” The state responds that the prosecutor commented on facts that were in evidence and properly before the jury. We agree with the state. Martinez testified on redirect examination that he was in a romantic relationship with Santiago, who previously was in a romantic relationship with the defendant, and that Santiago and the defendant have a child, Leanna, whom Martinez considers to be his stepdaughter. The connection between Martinez’ reluctance to testify and his concerns for Leanna was explicitly raised during recross-examination, when defense counsel twice asked Martinez whether he was reluctant to testify because of Leanna. Martinez answered in the affirmative both times. Moreover, the record shows that defense counsel attempted to impeach Martinez’ testimony as to his reluc- tance to testify against the defendant. Counsel presented Martinez with the orders requiring him to testify at the defendant’s probable cause hearing and trial, and asked him whether either document mentioned his reluctance to testify out of concern for his stepdaughter or the father of his stepdaughter. Martinez answered that neither document did. In other words, the jury properly had before it testimony that Martinez was reluctant to testify because of his family’s relationship to the defendant and further testimony that called the reason for his reluc- tance into question. We therefore conclude that the pros- ecutor did not improperly refer to facts not in evidence. We next turn to whether the same remark by the pros- ecutor improperly expressed his personal opinion as to Martinez’ credibility and, therefore, impermissibly vouched for him. “We consistently have held that it is improper for a prosecuting attorney to express his or her own opinion, directly or indirectly, as to the credibility  State v. Guerrero of witnesses.” State v. Fauci, supra, 282 Conn. 35. “Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence . . . it is likely to infer that such matters precipitated the personal opinions.” (Citations omitted; internal quota- tion marks omitted.) State v. Thompson, 266 Conn. 440, 462, 832 A.2d 626 (2003). However, courts must give jurors “the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand.” (Internal quota- tion marks omitted.) Id., 465. The defendant claims that the prosecutor’s remark “was an indirect form of expressing a personal opinion about the credibility of [Martinez] in the form of unsworn and unchecked testimony.” Contrary to the defendant’s characterization of the prosecutor’s remark, the pros- ecutor did not offer his personal opinion. The prosecutor neither guaranteed Martinez’ credibility nor implied that he had outside knowledge of Martinez’ credibility. He merely highlighted for the jury the evidence that had been elicited during Martinez’ testimony. Moreover, immediately before the challenged remark, the pros- ecutor told the jury that it was the arbiter of witness credibility. We therefore conclude that the prosecutor’s remark did not improperly express a personal opinion or vouch for Martinez. We next consider whether the prosecutor improperly appealed to the emotions, passions, and prejudices of the jurors. “It is well established that . . . [s]uch appeals should be avoided because they have the effect of divert- ing the [jurors’] attention from their duty to decide the  State v. Guerrero 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 [that] are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Sullivan, supra, 351 Conn. 812. The defendant claims that the prosecutor’s reference to the relationship between Martinez and Leanna is “a blatant appeal to the sympathy of the jury of the sort [that] this court has prohibited elsewhere.” He argues that there is no difference between the prosecutor’s remark here and the improper remark in State v. War- holic, 278 Conn. 354, 897 A.2d 569 (2006), referring to a victim as a “cute little kid . . . .” (Internal quotation marks omitted.) Id., 375–76. We are not persuaded. In Warholic, this court concl