State v. Wilson

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************  STATE OF CONNECTICUT v. DONALD CURTIS WILSON (SC 18631) Rogers, C. J., and Palmer, Zarella, Eveleigh, Harper and Vertefeuille, Js.* Argued November 29, 2012—officially released April 30, 2013 G. Douglas Nash, assigned counsel, for the appel- lant (defendant). Timothy J. Sugrue, assistant state’s attorney, with whom were Richard J. Colangelo, Jr., senior assistant state’s attorney, and, on the brief, David I. Cohen, state’s attorney, for the appellee (state).  Opinion ZARELLA, J. The defendant, Donald Curtis Wilson, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a.1 On appeal, the defendant claims that the trial court improperly (1) curtailed defense counsel’s cross-examination of a jailhouse informant regarding the maximum sentence the informant faced on pending felony charges at the time he incriminated the defendant in violation of the defendant’s constitutional right of confrontation and the state rules of evidence, (2) allowed inadmissible hearsay from the informant that his parole officer supported his application for a sen- tence modification in violation of the defendant’s con- stitutional right of confrontation, and (3) admitted into evidence testimony regarding the defendant’s gang membership. In addition, the defendant claims that the assistant state’s attorney (prosecutor) engaged in prose- cutorial impropriety during his cross-examination of the defendant’s expert witness and during closing argu- ment, thereby depriving the defendant of his due pro- cess right to a fair trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On the night of December 25, 2007, the defendant shot and killed Larry Paulk (victim). That evening, sev- eral members of the Paulk family had gathered to cele- brate the holiday at the home of the victim’s mother at a housing complex in Norwalk. In attendance were two of the victim’s brothers, Fred Paulk (Fred) and Ozell Paulk, and their wives and children. When Fred arrived at the complex, he noticed the defendant standing alone in front of the building. Fred had known the defendant since the defendant was a young child, and the two exchanged Christmas greetings. Fred’s son, Derrick Paulk (Derrick), arrived shortly after his father. As Derrick climbed the stairs to his grandmother’s second floor apartment, he passed the defendant, who appeared to be selling drugs to a person named Kenny Jackson. Upon arriving at the party, Der- rick said something to his father and the victim, which caused the victim to stand up and walk out the door. When the victim emerged from the apartment, Jackson and the defendant, who were now outside the apart- ment door, left the area, but the victim followed them down the stairs and into the vestibule. There, Jackson and the defendant met Jason Gonzalez. Gonzalez and the victim exchanged words, and a fight broke out, during which Gonzalez drew a gun. Upstairs in his moth- er’s apartment, Fred heard gunshots and ran to a second floor balcony that overlooked the vestibule. Below, he saw the victim fighting with Gonzalez over something in Gonzalez’ hands. Fred also observed a young woman, later identified as Kim Martinez, holding Gonzalez around the waist, trying to restrain him and shouting for him to stop. Two witnesses gave conflicting testimony as to the defendant’s location during the fight. Fred testified that the defendant stood in the doorway with his back to the open door. At some point, Gonzalez and the victim broke apart from each other, causing Gonzalez and Martinez to fall to the floor and the victim to fall back against a wall of mailboxes. When Fred looked toward the doorway, he saw the defendant aiming the gun at the victim. Fred shouted for the defendant not to shoot. In response, the defendant looked directly at Fred but then turned and shot the victim, who collapsed onto Gonzalez. The defendant then grabbed Gonzalez, and the two fled from the scene. A first floor resident, Barbara Thivierge, was also in the vestibule during the shooting. Thivierge testified that the defendant was standing near Gonzalez when the fight began but ended up next to her by a set of windows bordering the front door. Thivierge tried to escape but her shirt got caught on the front door latch and ripped, preventing her from leaving just as she heard the last shot. When Thivierge turned to look behind her, she saw Gonzalez slide out from underneath the victim. Unable to move, Thivierge held the door for Gonzalez and the defendant, who ran through it. A police investigation of the crime scene resulted in the discovery of three spent .40 caliber Smith & Wesson cartridge casings. One bullet, which had struck a first floor resident’s front door, was recovered at the crime scene. Two others were recovered from the victim’s body. All three bullets were fired from the same hand- gun, which the state’s firearms expert testified was almost certainly a Glock, but no gun was ever recovered. The defendant was charged with the victim’s murder on January 2, 2008, and subsequently was tried for that offense.2 The defendant did not testify at his trial. The jury in the defendant’s first trial was unable to reach a verdict, and a mistrial was declared on May 8, 2009. The present appeal arises from the second trial of the defendant in which the jury returned a verdict of guilty of the crime of murder on October 9, 2009. Additional facts will be set forth as necessary in the context of the defendant’s specific claims on appeal. I The defendant first claims that defense counsel’s cross-examination of James F. McGourn, the state’s jailhouse informant, was improperly curtailed when the court precluded counsel from asking McGourn about the maximum possible penalty he faced on his pending criminal charges. The defendant argues that (1) the trial court violated his right of confrontation by unduly restricting defense counsel’s ability to attack McGourn’s credibility through impeachment, (2) the trial court abused its discretion by precluding the impeachment evidence as irrelevant, and (3) such error, irrespective of whether it is determined to be eviden- tiary or constitutional, is harmful and warrants a new trial. The state responds that the defendant’s right to confront McGourn was not infringed because defense counsel was permitted to adduce ample evidence from which the jury could infer any bias, motive or incentive of McGourn to testify falsely. With respect to the eviden- tiary claim, the state contends that the trial court did not abuse its discretion by precluding cross-examina- tion into McGourn’s maximum potential sentence because the court reasonably could have concluded that the evidence, although relevant, was unduly preju- dicial. In the alternative, the state asserts that, even if the trial court’s ruling were an abuse of discretion, such error was harmless. Because we assume, arguendo, that there was constitutional error but nevertheless con- clude that the impropriety was not harmful, we reject the defendant’s claim that such impropriety would com- pel a new trial. We set forth the following additional facts that are relevant to our resolution of this claim. On January 3, 2008, the defendant was arraigned on the murder charge before the trial court and transferred to the Bridgeport correctional center, where he shared a prison cell with McGourn for approximately one week. McGourn, who previously had been convicted of twelve felonies, was awaiting trial on pending felony charges. On January 16, 2008, McGourn contacted the Norwalk police department to report that, while he and the defendant were cellmates, the defendant confessed to shooting the victim. At trial, McGourn admitted that he shared this information with the police in an attempt to obtain favorable treatment from prosecutors on his pending charges. During cross-examination, defense counsel sought to elicit McGourn’s ‘‘maximum possible exposure’’ for the felony conviction to which he ultimately pleaded guilty on May 8, 2008, but the trial court sustained the prosecu- tor’s objection to this question on relevancy grounds.3 Nevertheless, McGourn testified on cross-examination that, before he had encountered the defendant, the state had offered him a sentence of two and one-half years but that he ultimately ‘‘pled out to two.’’ Defense counsel further elicited from McGourn that his May 8, 2008 conviction was his thirteenth and that it resulted in a ‘‘flat’’ two year sentence, with no probation. After serving the first year of his sentence, McGourn was released on parole and obtained employment in Massachusetts. McGourn, however, could not leave the state of Connecticut without violating the terms of his parole, so he filed a motion for sentence modification, seeking early termination of parole. Although McGourn testified that he was offered ‘‘[n]o promises; no deals,’’ from the state, and that he ultimately received no deal, he admitted that his motion for sentence modification was granted on April 6, 2009, prior to his testimony in the defendant’s first trial on April 30, 2009. As a result, McGourn’s parole was terminated after only one year, and he was permitted to, and did, move out of state. McGourn agreed with defense counsel’s characteriza- tion that he was a ‘‘jailhouse snitch’’ with ‘‘a long list of felony convictions . . . .’’ Because of McGourn’s sta- tus as an informant, the trial court gave a special credi- bility instruction in its final charge to the jury, admonishing the jury to ‘‘review the testimony of an informant with particular scrutiny and weigh it with greater care than you would the testimony of an ordi- nary witness . . . in light of any motive he may have for testifying falsely and inculpating the accused.’’4 Assuming, without deciding, that the trial court’s cur- tailment of defense counsel’s cross-examination of McGourn amounted to constitutional error, we begin by considering whether such error was harmful. We have long recognized that ‘‘a violation of the defendant’s right to confront witnesses is subject to harmless error analysis . . . .’’ State v. Smith, 289 Conn. 598, 628, 960 A.2d 993 (2008). In undertaking this analysis, ‘‘the test for determining whether a constitutional [error] is harmless . . . is whether it appears beyond a reason- able doubt that the [error] complained of did not con- tribute to the verdict obtained.’’ (Internal quotation marks omitted.) State v. Hampton, 293 Conn. 435, 463, 978 A.2d 1089 (2009), quoting Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). In addition, ‘‘[w]hen an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reason- able doubt. . . . [W]e must examine the impact of the evidence on the trier of fact and the result of the trial. . . . If the evidence may have had a tendency to influ- ence the judgment of the jury, it cannot be considered harmless. . . . That determination must be made in light of the entire record [including the strength of the state’s case without the evidence admitted in error].’’ (Citations omitted; internal quotation marks omitted.) State v. Mitchell, 296 Conn. 449, 460, 996 A.2d 251 (2010). Applying these principles, we are persuaded that the alleged error was harmless in light of the facts set forth previously. Specifically, the defendant claims that defense counsel was precluded from eliciting testimony from McGourn that would have informed the jury of the maximum penalty McGourn faced for his pending charges. In the defendant’s view, this testimony would have enabled the jury to assess McGourn’s incentive to testify falsely against the defendant by comparing the sentence actually imposed with that which McGourn might otherwise have received but for his cooperation. Nevertheless, the jury heard McGourn’s unopposed tes- timony that he had been offered a two and one-half year sentence before he met the defendant and became involved in the defendant’s case.5 In addition, defense counsel established that McGourn received a two year sentence, without probation, after pleading guilty to his thirteenth felony, and that McGourn served only one half of this sentence before he was released from the terms of his parole and granted permission to move out of state. The jury was therefore made aware of the two and one-half year sentence offered to McGourn prior to his involvement in the defendant’s case, as well as the sentence ultimately imposed on and served by McGourn, and, accordingly, the jury was capable of assessing McGourn’s credibility by comparing these sentences. Under such circumstances, given that the jury was presented with uncontroverted evidence of a compromise offer that predated McGourn’s potential motive to fabricate, as well as the sentence that McGourn actually received due to his cooperation in the defendant’s prosecution, we are persuaded that the defendant’s inability to present evidence regarding the maximum potential sentence McGourn otherwise might have faced was harmless. Finally, because constitutional error claims are sub- jected to a stricter harmless error standard than non- constitutional evidentiary claims, our conclusion that the trial court’s preclusion of the cross-examination, if improper, was nevertheless harmless necessarily com- pels us to conclude that it was likewise harmless under a nonconstitutional evidentiary analysis. See, e.g., State v. George J., 280 Conn. 551, 592, 910 A.2d 931 (2006) (‘‘[I]f an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . When an improper evidentiary ruling is not consti- tutional in nature, the defendant bears the burden of demonstrating that the error was harmful.’’ [Internal quotation marks omitted.]), cert. denied, 549 U.S. 1326, 127 S. Ct. 1919, 167 L. Ed. 2d 573 (2007). Accordingly, we reject the defendant’s claim that the curtailment of defense counsel’s cross-examination of McGourn enti- tles him to a new trial. II The defendant next claims that the trial court abused its discretion in admitting certain testimony from McGourn on the ground that it constituted inadmissible hearsay evidence. The defendant also alleges that the trial court improperly admitted the challenged testi- mony in violation of the defendant’s constitutional right of confrontation. Specifically, the defendant challenges the trial court’s admission of McGourn’s statement that his parole officer was in agreement with the sentence reduction sought in his motion for sentence modifica- tion because he ‘‘met all her restrictions and qualifica- tions and groups.’’ The defendant argues that the admission of McGourn’s self-serving statement unfairly bolstered McGourn’s testimony and prejudiced the defendant. The state responds that, even if the trial court improperly admitted this statement in violation of the defendant’s right of confrontation, such admis- sion was harmless because the same evidence already had been admitted properly during defense counsel’s cross-examination of McGourn. We agree with the state. The following additional facts are relevant to our resolution of this claim. During cross-examination, defense counsel asked McGourn a number of questions regarding the two year sentence he received for his thirteenth felony conviction, seeking to expose facts from which the jury could infer that McGourn had received a substantial benefit from the state in exchange for his testimony. Defense counsel began by asking McGourn, ‘‘You got a sentence modification from the state’s attorney in Meriden, right?’’ McGourn replied in the affirmative. Shortly thereafter, defense counsel began, ‘‘The state’s attorney in Meriden—you got a life- time of crime. You got cases pending. You get two years on a drug case-’’ but McGourn cut him off, stating, ‘‘If you’re gonna ask me something, let me answer it.’’ At this point, the prosecutor objected, but the court over- ruled the objection, instructing defense counsel to ‘‘[a]sk [his] question’’ and ‘‘[l]et [McGourn] answer it.’’ Before defense counsel could ask another question, McGourn began testifying as follows: ‘‘I was offered a job out of state. I had talked to the prosecutor in the Meriden court because I was maintaining the job when I was out. My parole officer stuck up for me, went to bat with him so I could move to Mass[achusetts]. On parole, I could not leave the state of Connecticut. It was all agreed upon because I was attending [Narcotics Anonymous] meetings, maintaining steady employ- ment, reporting regularly, clean urines and stuff, they— you—would modify my sentence to allow me to move to Massachusetts on the condition that I did move to Mass[achusetts]. That’s why it was done.’’ (Emphasis added.) Subsequently, defense counsel asked McGourn if he received a ‘‘break’’ from the prosecutor in exchange for his testimony. McGourn replied that he did not know, but he believed that his motion for sentence modifica- tion was granted because his parole officer told the prosecutor that he had ‘‘met his terms’’ with her, and the prosecutor ‘‘agreed with the recommendation from [his] parole officer.’’ Defense counsel never objected to any of this testi- mony, and did not ask that any of it be stricken. On redirect examination, however, defense counsel did object to the prosecutor’s sole question regarding the same topic, namely, whether McGourn’s parole officer indicated that she was in agreement with a reduced sentence. McGourn answered: ‘‘Yes, because I met all her restrictions and qualifications and groups.’’ At this point, defense counsel objected. The prosecutor responded that the defense had opened the door to the question during cross-examination, and the trial court overruled defense counsel’s objection. A We begin by considering the defendant’s evidentiary claim, namely, that the testimony was improperly admit- ted because it constituted hearsay. ‘‘[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. . . . [T]his rule operates to prevent a defendant from successfully excluding inadmissible prosecution evi- dence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.’’ (Internal quotation marks omitted.) State v. Victor O., 301 Conn. 163, 189, 20 A.3d 669, cert. denied, U.S. , 132 S. Ct. 583, 181 L. Ed. 2d 429 (2011). Because defense counsel was the first to elicit the challenged statement during cross-examination, and because the prosecutor merely asked that McGourn repeat this statement on redirect examination, we conclude that the defense opened the door to the challenged state- ment. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the statement. B We next consider whether the admission of the state- ment, although consistent with our principles of evi- dence, nevertheless violated the defendant’s right of confrontation. As we have explained previously, ‘‘[a]lthough . . . hearsay rules and the [c]onfrontation [c]lause are generally designed to protect similar values, [the court has] also been careful not to equate the [c]on- frontation [c]lause’s prohibitions with the general rule prohibiting the admission of hearsay statements. . . . The [c]onfrontation [c]lause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.’’ (Internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 75, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). We see no reason to conclude, however, that this is such a case. Even assuming, arguendo, that the admission of the statement was a constitutional violation, we conclude that any such error was harmless. See State v. Smith, supra, 289 Conn. 628. ‘‘As with other constitutional vio- lations that are subject to harmless error analysis, the state has the burden of demonstrating that a confronta- tion clause violation was harmless beyond a reasonable doubt.’’ State v. Merriam, 264 Conn. 617, 649, 835 A.2d 895 (2003). ‘‘Whether such error is harmless in a particu- lar case depends [on] a number of factors, such as the importance of the witness’ testimony in the prosecu- tion’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or con- tradicting the testimony of the witness on material points, the extent of cross-examination otherwise per- mitted, and, of course, the overall strength of the prose- cution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.’’ (Internal quotation marks omitted.) State v. Smith, supra, 628. In the present case, the contents of the contested statement were first put before the jury by defense counsel, who elicited these statements through a series of questions regarding the length of McGourn’s sen- tence vis-á-vis the length of his criminal record. Appar- ently seeking to address the thrust of defense counsel’s questions as to why he served such a short sentence for his thirteenth felony, McGourn testified that his ‘‘parole officer stuck up for [him]’’ and that she ‘‘went to bat [for him] with [the prosecutor] so [he] could move to Mass[achusetts].’’ Rather than moving to strike this testimony as beyond the scope of the question, defense counsel proceeded to elicit the same statement two more times. It was only when the prosecutor, on redirect examination, asked McGourn if his ‘‘parole offi- cer [was] in agreement with [his] getting a reduced sentence’’ that defense counsel objected. By this point, however, McGourn’s answer, that he met ‘‘all [of his parole officer’s] restrictions and qualifications and groups,’’ was cumulative of evidence that already was properly put before the jury by defense counsel. Because the prosecutor’s question required only that McGourn repeat his prior testimony, the challenged statement could not have had any ‘‘impact . . . on the trier of fact’’ or on ‘‘the result of the trial’’; nor could it have had any ‘‘tendency to influence the judgment of the jury . . . .’’ (Internal quotation marks omitted.) State v. Smith, supra, 289 Conn. 628. Accordingly, to the extent that the admission of this evidence was, in fact, a violation of the defendant’s right of confronta- tion, a determination we do not make in this case, we conclude that any such impropriety was harmless. See id., 629 (finding harmless error notwithstanding viola- tion of defendant’s right of confrontation when state- ments admitted were ‘‘cumulative’’ of other evidence properly before jury and statements ‘‘appeared from the record to be little more than [the witness’] own opinion or a repetition of what he previously had heard from another source’’). But cf. State v. Colton, 227 Conn. 231, 254, 630 A.2d 577 (1993) (confrontation clause vio- lation not harmless when improperly admitted testi- mony formed basis of jury’s verdict and, had it not been credited, jury would not have been able to find defendant guilty). III Next, the defendant claims that the trial court improp- erly admitted evidence regarding his affiliation with a gang, asserting that this evidence was far more prejudi- cial than probative. The state counters that the trial court was well within its broad discretion in admitting the evidence and that the evidence was probative of the defendant’s motive to commit the murder. We agree with the state. The following additional facts are relevant to our resolution of this claim. Over defense counsel’s objec- tion, the trial court permitted the prosecutor to elicit testimony from McGourn regarding his sworn state- ment to the police. McGourn testified that he first learned of the murder from the defendant himself, who told him he had been ‘‘accused of [the] murder [of] a well-known boxer’s brother.’’ The defendant explained to McGourn that he, his father, and his ‘‘codefendant’’ planned to assault the victim, who had objected to and interfered with their drug trade. On the day of the mur- der, the trio sought out the victim, and when they encountered him, a fight broke out between the victim and the ‘‘codefendant.’’ The fight ended when the defen- dant gained control of the gun and shot the victim. After the murder, the defendant’s father disposed of all incriminating evidence, including the murder weapon. The defendant expressed surprise that the police had charged him with the murder because they initially had suspected his ‘‘codefendant.’’ He nonethe- less claimed to be unconcerned with punishment, as his ‘‘codefendant’’ would accept blame for the murder because of their respective positions in their street gang. Prior to trial, the defendant filed a motion in limine seeking to exclude all evidence of the defendant’s gang affiliation. The defendant argued that ‘‘[t]he testimony of street gangs and gang activity is so prejudicial and inflammatory that there is a high likelihood that this type of evidence will unduly arouse the [jurors’] emo- tions of prejudice, hostility or sympathy’’ and that such testimony has ‘‘little or no relevance to the main issues in this trial.’’ At a pretrial motion conference conducted by the trial court, White, J., defense counsel repeated the substance of these arguments. The prosecutor coun- tered that such testimony, if credited, ‘‘lays out a motive’’ and describes the mechanics of the murder in great detail. The court agreed with the state and denied the defendant’s motion in limine, but stated that it would instruct the jury on the credibility of ‘‘jail- house snitches.’’ ‘‘Relevant evidence is evidence that has a logical ten- dency to aid the trier in the determination of an issue. . . . Evidence is relevant if it tends to make the exis- tence or nonexistence of any other fact more probable or less probable than it would be without such evidence. . . . To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.’’ (Internal quotation marks omitted.) State v. Peeler, 267 Conn. 611, 634–35, 841 A.2d 181 (2004). ‘‘Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.’’ (Internal quotation marks omitted.) State v. Allen, 289 Conn. 550, 562, 958 A.2d 1214 (2008). ‘‘Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. . . . Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evi- dence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . Reversal is required only whe[n] an abuse of discretion is manifest or whe[n] injustice appears to have been done.’’ (Internal quota- tion marks omitted.) State v. Peeler, supra, 267 Conn. 637. In the present case, evidence of the defendant’s gang affiliation, if credited by the jury, was highly probative of a motive to kill the victim. Although motive is not an element of murder, ‘‘[w]e previously have recognized the significance that proof of motive may have in a criminal case. . . . [S]uch evidence is both desirable and important. . . . It strengthens the state’s case when an adequate motive can be shown. . . . Evidence tending to show the existence or nonexistence of motive often forms an important factor in the inquiry as to the guilt or innocence of the defendant. . . . This factor is to be weighed by the jury along with other evidence in the case.’’ (Internal quotation marks omit- ted.) Id., 636. As the state persuasively argues, the jury might reasonably have inferred that the defendant would have been prone to be less cautious, and more inclined to shoot the victim, if Gonzalez, who was actively fighting with the victim, was a confederate who would accept blame for the murder. Moreover, proof of that motive was particularly important in light of the identity of the victim, a longtime acquaintance of the defendant. See id., 637 (‘‘proof of . . . motive was especially important in view of the nature of the crimes with which the defendant was charged and the identity of the victims’’). Nevertheless, the defendant argues that the evidence of his gang affiliation was ‘‘dramatically presented’’ in McGourn’s testimony, improperly arousing the emo- tions of the jurors. We disagree. Although the jurors undoubtedly lacked a favorable opinion of the defen- dant’s gang, McGourn referred to the gang only once during his testimony, and the prosecutor never referred to the gang during closing argument. These factors mini- mized the risk of unfair prejudice to the defendant. Moreover, as the defendant was accused of murdering the victim pursuant to a plan developed by and executed with the other members of his drug trafficking organiza- tion—itself a gang of at least three—it is hard to see what, if any, unfair negative associations the jurors might impute to the defendant upon learning that his drug trafficking organization was, or was associated with, his gang. See, e.g., State v. Mozell, 40 Conn. App. 47, 51–52, 668 A.2d 1340 (evidence of defendant’s gang membership probative of motive to kill to protect gang’s drug sales territory, not unduly prejudicial), cert. denied, 236 Conn. 910, 671 A.2d 842 (1996). On the basis of the strong probative value of the evidence and the limited risk of unfair prejudice, we conclude that the trial court did not abuse its discretion in admitting the challenged evidence. IV Finally, the defendant claims that the prosecutor engaged in prosecutorial impropriety by denigrating the defendant’s expert witness during cross-examination and closing argument, thereby depriving the defendant of his due process right to a fair trial. The defendant further argues that, even if the alleged improprieties did not deprive him of a fair trial, this court should exercise its supervisory authority over the administra- tion of justice to grant him a new trial because of perva- sive prosecutorial impropriety. The state concedes the ‘‘excessive and unnecessary use of sarcasm’’ by the prosecutor but contends that the conceded improprie- ties did not deprive the defendant of a fair trial. The state further maintains that the exercise of this court’s supervisory authority is unwarranted in the present case. We agree with the state. The following additional facts are relevant to our disposition of this claim. Through the use of forensic evidence of gunshot residue deposited in and around the victim’s fatal wound, the defense sought to establish that he could not have been the shooter because he was standing too far from the victim at the time the fatal bullet was fired. Both sides called expert witnesses to testify regarding the approximate distance of the muzzle of the murder weapon from the victim’s chest at the time of the fatal shot (muzzle distance) on the basis of the gunshot resi- due evidence.6 Robert K. O’Brien, a supervisor of the identification section of the state forensic laboratory, testified for the state. Peter Diaczuk, the director of forensic science training at John Jay College of Criminal Justice (John Jay) in New York City, testified for the defendant. The muzzle distance analyses of both experts reflected substantial agreement. O’Brien esti- mated the minimum muzzle distance range as between one and four feet. On direct examination, Diazcuk esti- mated the muzzle distance at not less than one foot and no more than three feet. On cross-examination, however, Diaczuk agreed with O’Brien’s conclusion that the maximum distance was ‘‘[n]o further away than three to four feet . . . .’’ Nevertheless, Diaczuk favored an approximate distance of two feet, as this was the statistical mean between the one and three foot dis- tances that he had estimated as the lower and upper boundaries of the muzzle distance range. O’Brien, how- ever, disagreed that, ‘‘[i]n all likelihood . . . the shot [was] really in the two to two and [one]-half feet range,’’ stating that he ‘‘[did not] think a scientist [could] say that.’’ Both experts explained that, because the murder weapon was never recovered, their approximations were necessarily imprecise. For instance, O’Brien testi- fied that factors such as the length of the barrel of the murder weapon, the type of ammunition used, and the dirtiness of the gun’s barrel affect the amount of gun- powder deposited in and around the wound. Further- more, both experts testified that agitation of the victim’s garment, such as that which occurred when emergency medical services personnel administered treatment to the victim, could have dislodged additional gunpowder particles. In reaching their conclusions, both experts conducted tests by firing a Glock handgun from con- trolled distances at a garment similar to that worn by the victim at the time of the murder. Despite the substantial agreement between the par- ties’ expert witnesses, the prosecutor made a number of comments regarding Diaczuk during both cross- examination and closing argument that are the subject of the fourth and final issue on appeal. Diaczuk, whose credentials are relevant to this claim, received his bach- elor’s degree from John Jay in 1978 and returned twenty- five years later to pursue a master’s degree. During the interim, Diaczuk started his own consulting firm, which worked on mechanical and structural engineering proj- ects, but spent approximately one half of his time and derived most of his income from doing carpentry work. After returning to John Jay, Diaczuk and a colleague presented research involving gunshot residue deposi- tion at a meeting of the American Academy of Forensic Sciences, one of several professional organizations of which Diaczuk was a member. Diaczuk worked as a lecturer at John Jay and as a ‘‘forensic consultant’’ to his mentors, Professors Peter R. De Forest and Thomas A. Kubic, assisting them in conducting distance determi- nation research. Diaczuk admitted on cross-examina- tion, however, that his work on the defendant’s criminal case was the first time he had conducted unsupervised muzzle distance testing using a Glock firearm.  Defense counsel did not object at trial to a number of the improprieties that the defendant now challenges on appeal. ‘‘[A] claim of prosecutorial impropriety, [however] even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535–40, 529 A.2d 653 (1987). . . . In analyzing claims of prose- cutorial impropriety, we engage in a two step process.’’7 (Internal quotation marks omitted.) State v. Gilberto L., 292 Conn. 226, 245, 972 A.2d 205 (2009). ‘‘The two steps are separate and distinct: (1) whether [an impro- priety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due pro- cess right to a fair trial. Put differently, [impropriety] is [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 pro- cess violation is a separate and distinct question . . . .’’ (Internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 81, 3 A.3d 1 (2010), cert. denied, U.S. , 131 S. Ct. 1479, 179 L. Ed. 2d 316 (2011). ‘‘[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 [on] 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.’’ (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 571–72, 849 A.2d 626 (2004). That is not to say, however, ‘‘that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occa- sional use of rhetorical devices is simply fair argument.’’ (Internal quotation marks omitted.) State v. Santiago, 269 Conn. 726, 734, 850 A.2d 199 (2004). Indeed, this court ‘‘give[s] the jury the credit of being able to differ- entiate 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. The state’s attorney should not be put in the rhetorical straitjacket of always using the passive voice, or contin- ually 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,