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STATE OF CONNECTICUT v. ADRIAN PEELER(SC 16571)

Sullivan, C. J., and Norcott, Palmer, Vertefeuille and Zarella, Js.

Argued September 22, 2003—officially released February 24, 2004

Felix Esposito, for the appellant (defendant).

Susann E. Gill, senior assistant state’s attorney, withwhom, on the brief, were Jonathan C. Benedict, state’sattorney, and Joseph T. Corradino, senior assistantstate’s attorney, for the appellee (state).

Opinion

PALMER, J. A jury found the defendant, AdrianPeeler, guilty of conspiracy to commit murder in viola-tion of General Statutes §§ 53a-54a1 and 53a-48.2 Thetrial court rendered judgment in accordance with thejury verdict,3 and the defendant appealed,4 claiming thatthe trial court improperly had: (1) rejected his claim thatthe state, during jury selection, exercised a peremptory

challenge in a racially discriminatory manner; (2) per-mitted the state to introduce certain hearsay statementsunder the coconspirator exception to the hearsay rule;and (3) permitted the state to introduce certain evi-dence relating to motive. The defendant also claimsthat certain remarks made by the state’s attorney duringclosing arguments deprived him of a fair trial. We rejectthese claims and, accordingly, affirm the judgment ofthe trial court.

The record reveals the following facts. In the 1990s,the defendant and his brother, Russell Peeler (Russell),ran a large-scale drug trafficking operation in the cityof Bridgeport. The defendant and Russell divided theprofits derived from the operation, which were esti-mated to be as much as $38,000 per week.

Sometime in 1997, Russell and a former drug traffick-ing partner, Rudolph Snead, Jr., had a dispute, appar-ently over drug money. As a result of this dispute,Russell attempted to kill Snead on September 2, 1997.Specifically, on that date, Russell was riding in a carwith Ryan Peeler, Corey King and Shawn Kennedy whenRussell noticed Snead’s car in the parking lot of a bar-bershop located in Bridgeport. Snead subsequently leftthe barbershop and drove to a gas station. Two sevenyear old boys, one of whom was Leroy Brown, Jr., werepassengers in Snead’s car.

After Snead exited the gas station, Russell followedSnead to the Lindley Street entrance ramp to Route25 in Bridgeport. Snead proceeded up the ramp butgradually slowed down and pulled off to the side ofthe road. The car in which Russell was riding pulledalongside Snead’s car. Russell, who was armed with a.40 caliber, semiautomatic handgun and seated in theright front passenger seat, fired several shots at Snead.5

Although Snead had been injured by the shots, he wasable to drive himself to St. Vincent’s Medical Center inBridgeport where he received treatment for his gun-shot wounds.

Shortly thereafter, Officer Robert Shapiro of theBridgeport police department interviewed Snead andhis two young passengers. Shapiro’s investigative reportincluded the names of all three interviewees. On thebasis of Snead’s identification of Russell as the personwho had shot him, Russell was arrested and chargedwith attempted murder.

Russell posted bond, however, and was released fromcustody. While free on bond, Russell shot and killedSnead in the same barbershop that Snead had patron-ized immediately prior to the Lindley Street shooting.After ballistics tests performed on shell casingsretrieved from the murder scene and the scene of theLindley Street shooting revealed that they had beenfired from the same gun, Russell was arrested andcharged with the murder of Snead.

Russell again secured his release by posting bond.As a condition of his release, Russell was required tobe in his house on Chopsey Hill Road in Bridgeport by9 p.m. each evening. He also was required to wear anelectronic ankle bracelet so that his compliance withthe court imposed curfew could be monitored.

In January, 1998, during the course of pretrial discov-ery in the criminal case involving the Lindley Streetshooting, the state provided Russell with a police reportidentifying Brown as one of the two passengers inSnead’s car when the Lindley Street shooting hadoccurred. Russell did not learn, however, until Decem-ber 23, 1998, that Brown and his mother, Karen Clarke,had given the police sworn, written statements aboutthe Lindley Street shooting. In addition, after Russellwas arrested for Snead’s murder, the state providedRussell with copies of certain ballistics reports connect-ing the shell casings found at the scene of the LindleyStreet shooting with the shell casings found at the sceneof Snead’s murder.

During the fall of 1998, Russell frequently speculatedabout the identity of the state’s witnesses. Upon learn-ing that Brown’s testimony linked him to the LindleyStreet shooting and that the ballistics evidence con-nected that shooting with the murder of Snead, Russellbegan to speak about killing Brown and Clarke. On onesuch occasion, Russell and the defendant had a heateddiscussion in which Russell repeatedly implored thedefendant to kill Brown and Clarke. The defendantdeclined to do so, however.

At this time, Russell and his drug trafficking associ-ates were using a house located at 200 Earl Avenue inBridgeport to process crack cocaine. The residents ofthat house, including Josephine Lee, were crack cocaineusers who obtained their drugs from Russell and thedefendant’s drug operation. Brown and Clarke livedacross the street, at 207 Earl Avenue.

Lee testified that, on January 6, 1999, Russell andKing were at her house, observing Clarke’s house froma window in Lee’s dining room. Lee further testifiedthat the defendant and Gary Garner, one of Russell’sassociates, came by her house that day. King eventuallyleft Lee’s house and, thereafter, Lee observed Russelland the defendant having a discussion in her livingroom.

Russell and the defendant then entered Lee’s kitchenand prepared some crack cocaine. At that time, Russelloffered Lee ‘‘a couple hundred’’ dollars if she would killClarke. Lee, who testified that she never had handled agun, declined to do so, however. Russell thereuponasked the defendant if he would kill Clarke. Accordingto Lee, the defendant stated that he would ‘‘take careof it.’’

Russell then asked Lee to keep an eye on Clarke’s

house and to contact him when Clarke and Brownarrived home. Lee agreed to do so, and Russell wrotedown his beeper number for Lee so that she could reachhim when Clarke and Brown returned home. Russellgave Lee some crack cocaine, apparently in return forher willingness to act as a lookout for him.

Lee testified further that, the next day, in the lateafternoon, she was at home ‘‘getting high’’ when sheobserved Clarke pull into her driveway. Both Clarkeand Brown exited the car and entered Clarke’s house.Lee then called Russell’s beeper number. Upon receiv-ing the beeper message, Russell called Lee back. Leetold Russell that ‘‘the little boy and lady [were] home.’’A few minutes later, Lee entered her living room andsaw the defendant standing there. The defendant, whowas dressed in black and had a gun in his hand, greetedLee and then left Lee’s house through the front door.Lee followed him.

The defendant crossed the street and walked towardClarke’s house. The defendant stopped, however, tospeak to Garner, who was the lone occupant of a carthat was parked in front of Clarke’s house. Lee testifiedthat she heard the defendant tell Garner that ‘‘he wasgoing in.’’ According to Lee, Garner then warned herthat if she ‘‘said anything,’’ she and the ‘‘whole house’’were ‘‘going to get it, too.’’6

The defendant and Lee walked up to Clarke’s frontdoor. Lee rang the doorbell while the defendant hidbehind her. Lee heard Clarke, from inside the house,ask, ‘‘Who is it?’’ Lee identified herself as ‘‘[t]he girlacross the street.’’ Clarke started to open the door whenthe defendant pushed past Lee and forced the dooropen.

Lee testified that she followed the defendant intoClarke’s house where she observed him chase Brownand Clarke up a flight of stairs. While Brown was ‘‘hol-lering out for his mommy,’’ the defendant pursuedClarke into an upstairs bedroom. According to Lee, sheheard the defendant say something about Brown beinga witness and then heard a gunshot from the bedroom.Lee testified that, immediately thereafter, the defendantemerged from that room and shot Brown in the head.The defendant then ran out of the house. Lee initiallyfroze, but, thereafter, she, too, fled Clarke’s house. Bythe time she had done so, however, both the defendantand the car in which Garner was sitting were gone.

After the shootings, the defendant drove to a ComfortInn motel in Milford and checked in under a false name.He subsequently went with Kennedy and King to themall in Stamford. The defendant eventually returnedto the Comfort Inn where he remained until the nextmorning. The next day, the defendant purchased around trip plane ticket to North Carolina under anotherfalse name. The defendant was to leave for North Caro-

lina on January 10, 1999, and was to return to Connecti-cut on January 16, 1999. The defendant thereafterchanged his departure date to January 17, 1999, and hisreturn date to January 23, 1999. The defendant neverused the ticket, however, and did not exchange it orseek a refund.

On January 14, 1999, Russell was arrested for themurders of Brown and Clarke. Soon thereafter, theBridgeport Post ran a story about Russell’s arrest thatincluded a photograph of the defendant. That same day,at the defendant’s request, Kennedy drove the defen-dant to New York City where the defendant boarded atrain headed for North Carolina. On January 21, 1999,members of a Federal Bureau of Investigation (FBI)fugitive task force apprehended the defendant in NorthCarolina in connection with the murders of Brown andClarke. The defendant subsequently was charged withtwo counts of capital felony in violation of GeneralStatutes (Rev. to 1997) § 53a-54b (8) and (9),7 one countof murder and one count of conspiracy to commit mur-der.8 After a jury trial, the defendant was convicted ofconspiracy to commit murder and acquitted on theother charges. Additional facts will be set forth as nec-essary.

I

The defendant first claims that the trial court improp-erly overruled his objection to the state’s use of aperemptory challenge against venireperson A.F.,9 anAfrican-American female. Specifically, the defendantcontends that his equal protection rights were violatedbecause the state’s exercise of that challenge was theproduct of impermissible racial discrimination. Wedisagree.

Before addressing the merits of the defendant’s claim,we set forth the well established legal principles thatgovern our review. ‘‘In Batson [v. Kentucky, 476 U.S.79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)] the UnitedStates Supreme Court recognized that a claim of pur-poseful racial discrimination on the part of the prosecu-tion in selecting a jury raises constitutional questionsof the utmost seriousness, not only for the integrity ofa particular trial but also for the perceived fairness ofthe judicial system as a whole. . . . The court con-cluded that [a]lthough a prosecutor ordinarily is entitledto exercise permitted peremptory challenges for anyreason at all, as long as that reason is related to his [orher] view concerning the outcome of the case to betried . . . the Equal Protection Clause forbids the pros-ecutor to challenge potential jurors solely on accountof their race . . . .

‘‘Under Connecticut law, [o]nce a [party] asserts aBatson claim, the [opposing party] must advance a neu-tral explanation for the venireperson’s removal. . . .The [party asserting the Batson claim] is then afforded

the opportunity to demonstrate that the [opposing par-ty’s] articulated reasons are insufficient or pretextual.. . . [T]he trial court then [has] the duty to determineif the [party asserting the Batson claim] has establishedpurposeful discrimination. . . . The [party assertingthe Batson claim] carries the ultimate burden of per-suading the trial court, by a preponderance of the evi-dence, that the jury selection process in his or herparticular case was tainted by purposeful discrimina-tion. . . .

‘‘We have identified several specific factors that mayindicate that [a party’s removal] of a venirepersonthrough a peremptory challenge was . . . motivated[by race or gender]. These include, but are not limitedto: (1) [t]he reasons given for the challenge were notrelated to the trial of the case . . . (2) the [party exer-cising the peremptory strike] failed to question the chal-lenged juror or only questioned him or her in aperfunctory manner . . . (3) prospective jurors of onerace [or gender] were asked a question to elicit a partic-ular response that was not asked of the other jurors. . . (4) persons with the same or similar characteris-tics but not the same race [or gender] as the challengedjuror were not struck . . . (5) the [party exercising theperemptory strike] advanced an explanation based ona group bias where the group trait is not shown to applyto the challenged juror specifically . . . and (6) the[party exercising the peremptory strike] used a dispro-portionate number of peremptory challenges to excludemembers of one race [or gender]. . . .

‘‘In assessing the reasons proffered in support of theuse of a peremptory challenge . . . [a]n explanation. . . need not . . . be pigeon-holed as wholly accept-able or wholly unacceptable . . . and even where theacceptability of a particular explanation is doubtful, theinquiry is not at an end. In deciding the ultimate issueof discriminatory intent, the judicial officer is entitled toassess each explanation in light of all the other evidencerelevant to prosecutorial intent. The officer may thinka dubious explanation undermines the bona fides ofother explanations or may think that the sound explana-tions dispel the doubt raised by a questionable one. Aswith most inquiries into state of mind, the ultimatedetermination depends on an aggregate assessment ofall the circumstances. . . .

‘‘Finally, the trial court’s decision on the question ofdiscriminatory intent represents a finding of fact thatwill necessarily turn on the court’s evaluation of thedemeanor and credibility of the attorney of the partyexercising the peremptory challenge. . . . Accord-ingly, a trial court’s determination that there has or hasnot been intentional discrimination is afforded greatdeference and will not be disturbed unless it is clearlyerroneous. . . . A finding of fact is clearly erroneouswhen there is no evidence in the record to support it

. . . or when although there is evidence to support it,the reviewing court on the entire evidence is left withthe definite and firm conviction that a mistake has beencommitted.’’ (Citation omitted; internal quotationmarks omitted.) State v. Mukhtaar, 253 Conn. 280, 283–86, 750 A.2d 1059 (2000). With these principles in mind,we now turn to the factual underpinnings of the defen-dant’s claim.

After both parties had questioned A.F., the state’sattorney exercised a peremptory challenge to strike herfrom the panel. The defendant objected, claiming thatthe state’s exercise of a peremptory challenge againstA.F. was predicated on the fact that she is African-American. The state’s attorney sought to refute thedefendant’s claim by explaining that the primary reasonfor striking A.F. was that she had a son who was approx-imately the same age as the defendant and who hadserved one year in prison for drug and weaponsoffenses. According to the state’s attorney, thoseoffenses involved conduct that bore similarities to con-duct in which the defendant engaged and regardingwhich the state intended to introduce evidence. Thestate’s attorney further indicated that he also had con-sidered the fact that A.F. herself previously had had abrush with the law.10 Finally, the state’s attorney notedthat he expected the defendant to introduce, during thepenalty phase of the case,11 mitigating evidence relatingto the death of the defendant’s mother, a former policeofficer who was approximately the same age as A.F.when she died.

The defendant claimed that the reasons that thestate’s attorney proffered for striking A.F. from thepanel were unsupported by the record and merely apretext for racial discrimination. In support of his claim,the defendant referred to A.F.’s assertion that she heldher son, and not the state, responsible for her son’slegal difficulties. The defendant also maintained thatit was improper for the state’s attorney to exercise aperemptory challenge on the basis of evidence that thedefendant might adduce at some stage of the proceed-ings. In addition, the defendant maintained that if A.F.were biased at all, it likely was in favor of the state inview of her employment as a correction officer. Finally,the defendant noted that the state’s attorney had failedto question A.F. in more than a perfunctory manner.

The trial court concluded that the reasons offered bythe state’s attorney for striking A.F. were race neutral,supported by the record and not pretextual. The courtthereupon overruled the defendant’s objection to thestate’s use of a peremptory challenge to strike A.F. Onappeal, the defendant renews his claim of a Batson

violation. We agree with the state that the defendanthas failed to demonstrate that the trial court’s determi-nation was clearly erroneous.

As we recently have observed, ‘‘[c]ourts consistently

have upheld the use of peremptory challenges to excusea venireperson with a close relative who has been prose-cuted because of the real possibility that the venire-person may harbor resentment against prosecutingauthorities generally.’’ State v. Hodge, 248 Conn. 207,231, 726 A.2d 531 (1999). A.F. testified that her son hadbeen convicted of drug and weapons offenses.‘‘Although [A.F.] stated that she would not allow [thatfact] to affect her impartiality as a juror, a prosecutoris not bound to accept the venireperson’s reassurances,but, rather, is entitled to rely on his or her own experi-ence, judgment and intuition in such matters.’’ Id.; cf.State v. Smith, 222 Conn. 1, 14–15, 608 A.2d 63 (1992)(‘‘[a] venireperson’s assessment of his [or her] ownprejudices may be untrustworthy for a variety of rea-sons’’). Moreover, the fact that the defendant and A.F.’sson were close in age and had committed several likeoffenses reasonably may have caused the state’s attor-ney to be particularly concerned that A.F. might identifywith the defendant to the detriment of the state. In theabsence of any other indication of racially motivatedconduct by the state’s attorney during the jury selectionprocess, A.F.’s son’s criminal convictions alone consti-tuted a sufficient basis for the trial court’s finding thatthe decision of the state’s attorney to strike A.F. wasnot racially motivated.

Although it is true that the state did not question A.F.at length and did not press her about her ability to beimpartial, the trial court reasonably concluded that thestate’s attorney had obtained enough information aboutA.F., based upon the totality of the parties’ questioningof A.F., to warrant a legitimate, race neutral concernin the mind of the state’s attorney regarding A.F.’s suit-ability as a juror. Furthermore, it is entirely proper fora prosecutor to use a peremptory challenge to strike avenireperson on the basis or his or her reasonable beliefthat, in light of certain evidence that the defendant islikely to produce at trial, that venireperson may befavorably disposed toward the defendant for reasonsunrelated to the merits of the case. Moreover, the state’sattorney was not bound to conclude that, because A.F.was a correction officer, any bias she might have likelywould favor the state rather than the defendant. No suchconclusion is foregone merely because a venirepersonworks in law enforcement, especially when, as in thepresent case, countervailing considerations, such as afamily member with a criminal history, reasonably maybe perceived to outweigh any possible bias that a venire-person otherwise might have in favor of the state.

Finally, the defendant does not contend that thestate’s attorney engaged in any other racially discrimi-natory conduct during the jury selection process.Although the fact that the defendant adduced no suchevidence is not dispositive of his claim, that fact sup-ports the trial court’s finding that the state’s attorney’sexercise of a peremptory challenge against A.F. was

unrelated to A.F.’s race. We conclude, therefore, thatthe trial court’s determination with respect to the defen-dant’s Batson claim was not clearly erroneous.

II

The defendant next claims that the trial court improp-erly permitted the state to introduce into evidence,under the coconspirator exception to the hearsay rule,certain inculpatory statements that Russell had made.According to the defendant, the admission of this evi-dence violated his right under the sixth amendment tothe United States constitution to confront the witnessesagainst him.12 We disagree.

The following additional facts are relevant this claim.The state called Ryan Peeler (Ryan), the defendant’scousin, as a witness in its case-in-chief. Before Ryantestified, the defendant sought to preclude the statefrom eliciting testimony from Ryan about certain state-ments that he had heard Russell make. The defendantclaimed that Russell’s statements were inadmissiblehearsay and that their admission would violate his rightsunder the confrontation clause. The state claimed thatRussell’s statements, although hearsay, fell within thecoconspirator exception to the hearsay rule. See Conn.Code Evid. § 8-3 (1) (D). The trial court agreed withthe state and allowed the state’s attorney to elicit Ryan’stestimony regarding Russell’s statements.13

Ryan then testified that, on the evening of the mur-ders, he drove Russell’s car, which he had borrowedearlier that day, to Russell’s house on Chopsey HillRoad where the two men played video games. Russelltold Ryan that he had been home all day and that thedefendant was ‘‘doing something’’ for him. That sameevening, Russell asked Ryan to take Russell’s car whenhe left. The next morning, Ryan drove to Russell’shouse, picked him up and, at Russell’s direction, tookhim to the Comfort Inn motel in Milford where theymet the defendant. On their way to Milford, Russell toldRyan that the defendant ‘‘did something’’ for him andwarned Ryan ‘‘not to say anything about it.’’ Upon theirarrival at the Comfort Inn, Russell went inside and Ryanwaited outside. Russell eventually emerged from themotel with Garner.

A day or two after the murders, Ryan, Russell andKennedy were together in an apartment on Lincoln Ave-nue in Bridgeport when Russell received a telephonecall. Ryan heard Russell ask the unidentified caller, ‘‘Didyou file that down?’’ Ryan also heard Russell use theword ‘‘river’’ during the telephone conversation.

On appeal, the defendant renews his claim that thetrial court improperly concluded that Russell’s hearsaystatements were admissible under the coconspiratorexception to the hearsay rule. The thrust of the defen-dant’s contention is that the statements fall outsidethe exception because the evidence is insufficient to

establish that they were made in furtherance of an ongo-ing conspiracy.14 We disagree.

‘‘It is well established that a coconspirator’s [hearsay]statement, made while the conspiracy is ongoing andin furtherance of the conspiracy, is an exception to thehearsay rule and as such, does not violate the confronta-tion clause. . . . In order to invoke the coconspiratorexception to the hearsay rule, [t]here must be evidencethat there was a conspiracy involving the declarant andthe nonoffering party, and that the statement was madeduring the course and in furtherance of the conspiracy.. . . The court must make its preliminary determina-tion[s] by a fair preponderance of the evidence . . . .’’(Citations omitted; internal quotation marks omitted.)State v. Robertson, 254 Conn. 739, 745, 760 A.2d 82(2000); see also Conn. Code Evid. § 8-3 (1) (D). More-over, ‘‘the evidence will be construed in a way mostfavorable to sustaining the preliminary determinationsof the trial court; its conclusions will not be disturbedon appeal unless found to be clearly erroneous.’’ State

v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985),cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed.2d 187 (1986).

‘‘[T]he in furtherance term implies . . . [that] thestatements must in some way have been designed topromote or facilitate achievement of the goals of theongoing conspiracy, as by, for example, providing reas-surance to a coconspirator, seeking to induce a cocon-spirator’s assistance, serving to foster trust andcohesiveness, or informing coconspirators as to theprogress or status of the conspiracy . . . or by prompt-ing the listener—who need not be a coconspirator—torespond in a way that promotes or facilitates the car-rying out of a criminal activity . . . . Statements madeby a co-conspirator to a third party who is not thena member of the conspiracy are considered to be infurtherance of the conspiracy if they are designed toinduce that party either to join the conspiracy or to actin a way that will assist it in accomplishing its objectives. . . .’’ (Citation omitted; internal quotation marksomitted.) State v. Robertson, supra, 254 Conn. 748–49.Of course, whether a particular statement is made in thecourse of and in furtherance of the conspiracy dependsupon the nature of the statement and all of the relevantfacts and circumstances under which it was made. See,e.g., United States v. Lewis, 759 F.2d 1316, 1340 (8thCir.), cert. denied sub nom. Milburn v. United States,474 U.S. 994, 106 S. Ct. 406, 88 L. Ed. 2d 357 (1985),and cert. denied sub nom. Milburn v. United States,474 U.S. 994, 106 S. Ct. 407, 88 L. Ed. 2d 357 (1985).

Finally, ‘‘[a] conspiracy does not necessarily end withthe commission of the target crime. Thus, a subsequentdeclaration of a conspirator may be admissible againstany coconspirator . . . if the conspirators were stillconcerned with the concealment of their criminal con-

duct or their identity . . . .’’ (Internal quotation marksomitted.) State v. Robertson, supra, 254 Conn. 746.

The defendant first claims that Russell’s two state-ments to Ryan about the defendant ‘‘doing something’’for him were not made in furtherance of the conspiracyto murder Brown and Clarke. The defendant contendsthat the statements, though perhaps an acknowledg-ment of a conspiracy, were not intended to promote anygoal of the conspiracy. See, e.g., Tuscaloosa v. Harcros

Chemicals, Inc., 158 F.3d 548, 559 (11th Cir. 1998) (‘‘[a]statement that merely discloses the existence of a con-spiracy to a non-conspirator, that merely ‘spills thebeans,’ with no intention of recruiting the [nonconspira-tor] into the conspiracy does not further the conspir-acy’’), cert. denied, 528 U.S. 812, 120 S. Ct. 309, 145 L.Ed. 2d 42 (1999). ‘‘The law [however] does not requirea conspirator to ask a third party expressly to do some-thing to further the conspiracy in order for the state-ment to be admissible under the coconspiratorexception to the hearsay rule. . . . Instead, [t]he stan-dard to be applied is whether some reasonable basisexists for concluding that the statement furthered theconspiracy.’’ (Citations omitted; internal quotationmarks omitted.) State v. Robertson, supra, 254 Conn.750.

We conclude that the trial court properly determinedthat this standard was satisfied with respect to both ofRussell’s statements that the defendant had agreed to‘‘do something’’ for him. The first such statement, whichwas followed by Russell’s request to Ryan that Ryantake Russell’s car for the night, likely was intended toprovide Ryan with the reason why Russell wanted Ryanto take his car, namely, to shore up his alibi that hewas home, without transportation, when the murdersoccurred.15 Thus, Russell’s statement was intended toinduce Ryan to act in a manner that would assist Russellin establishing an alibi. The concoction of an alibi isevidence of an effort to conceal a crime; State v. Booth,250 Conn. 611, 661, 737 A.2d 404 (1999), cert. deniedsub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct.1568, 146 L. Ed. 2d 471 (2000); and statements relating tosuch efforts are admissible under the coconspiratorexception to the hearsay rule. See id., 661–62.

We reach the same conclusion with respect to Rus-sell’s statement to Ryan on the day after the murdersin which Russell declared that the defendant ‘‘did some-thing’’ for him. Russell had reason to believe that Ryanknew about his involvement in those murders becauseRyan witnessed the Lindley Street shooting, he waspresent when Russell asked the defendant to kill Brownand Clarke, and Russell had told Ryan the day beforethat the defendant was ‘‘doing something’’ for him.Thus, Ryan likely knew or, at the very least, suspectedthat Russell was involved in the murders of Brown andClarke. Russell’s statement to Ryan that the defendant

‘‘did something’’ for him, followed by the admonitionthat Ryan was ‘‘not to say anything about it,’’ was anattempt to secure Ryan’s silence and to discourage himfrom asking questions. See United States v. Beech-Nut

Nutrition Corp., 871 F.2d 1181, 1199 (2d Cir.) (state-ments to third party were made in furtherance of con-spiracy when purpose of statements was to discouragethird party from revealing incriminating information),cert. denied sub nom. Lavery v. United States, 493 U.S.933, 110 S. Ct. 324, 107 L. Ed. 2d 314 (1989). Conse-quently, Russell’s statements were made in furtheranceof a conspiracy and, therefore, were admissible underthe hearsay exception for statements by a cocon-spirator.

The defendant contends that Russell’s references tothe defendant’s ‘‘doing something’’ for him did not fur-ther any conspiracy because the statements wereambiguous and subject to other interpretations. In sup-port of this contention, the defendant relies on Ryan’stestimony that he did not know what Russell was refer-ring to when he heard the statements and, furthermore,that Ryan did nothing in response to the statements.The defendant also refers to testimony establishing thatRussell was a braggart who spoke frequently of hisinterest in killing the victims, that Russell often lentRyan and others his car, and that Russell did not needsupport for his alibi in light of the fact that his where-abouts were being monitored by his electronic anklebracelet. We are not persuaded by the defendant’sargument.

The fact that a coconspirator’s statement does notactually further the conspiracy does not preclude thestatement from being admissible under the coconspira-tor hearsay exception. See, e.g., United States v. Reyes,798 F.2d 380, 384 (10th Cir. 1986); United States v.Hamilton, 689 F.2d 1262, 1270 (6th Cir. 1982), cert.denied sub nom. Wright v. United States, 459 U.S. 1117,103 S. Ct. 753, 74 L. Ed. 2d 971 (1983), and cert. deniedsub nom. Salisbury v. United States, 459 U.S. 1117, 103S. Ct. 754, 74 L. Ed. 2d 971 (1983). ‘‘It is enough that [thestatement is] intended to promote the conspiratorialobjectives.’’ United States v. Hamilton, supra, 1270;accord United States v. Reyes, supra, 384. Similarly,the coconspirator’s statement need not be perfectlyclear or unambiguous. Indeed, because of the secretivenature of most conspiracies, statements that are madein furtherance of a conspiracy frequently are cryptic orguarded.16 All that is required is a reasonable basis forconcluding that the statements were made in further-ance of the conspiracy, and such a basis existed withrespect to Russell’s statements that the defendant was‘‘doing something’’ and ‘‘did something’’ for him.

The defendant also claims that the trial court improp-erly permitted the state to elicit testimony from Ryanthat he had overheard Russell, while on the telephone,

ask an unknown caller, ‘‘Did you file that down?’’17 Inaddition, the defendant claims that the trial courtimproperly allowed the state to elicit testimony fromRyan that he had heard Russell say the word ‘‘river’’during that same telephone conversation. In particular,the defendant contends that the statements were inad-missible under the coconspirator exception to the hear-say rule because the state never established the identityof the caller. The defendant further claims that, evenif the state’s failure to establish the caller’s identitydoes not preclude the statements from being admittedunder the coconspirator exception to the hearsay rule,the statements still were inadmissible inasmuch as theyrelated to a conspiracy to conceal or destroy evidencethat was separate and distinct from the conspiracy tomurder Brown and Clarke.

With respect to the defendant’s first claim, we neverhave held that the identity of the party to whom thestatement is addressed is a prerequisite to the admissi-bility of a conspirator’s statement under the coconspira-tor exception to the hearsay rule. Although the identityof that third party may be helpful in determiningwhether the statements were made in furtherance of aconspiracy, the third party’s identity is not essential tosuch a determination. If, under all of the facts andcircumstances, there is a reasonable basis to concludethat statements made by a coconspirator to an unidenti-fied third party were made in furtherance of the conspir-acy, those statements are otherwise admissible underthe coconspirator exception to the hearsay rule. In lightof the existence of evidence that Russell had solicitedthe murders, the proximity of the telephone call to thosemurders, and the fact that the murders were committedwith a handgun, there was a reasonable basis for thetrial court to conclude that Russell’s statements relatedto the concealment or destruction of the murderweapon. As we have explained, efforts to conceal acrime that already has been committed generally willbe deemed to be in furtherance of the conspiracy tocommit that crime.

For that reason, we also reject the defendant’s claimthat the challenged statements were not made whilethe murder conspiracy was ongoing. The trial courtreasonably concluded that the conspiracy was ongoingduring the period shortly after the murders, when Rus-sell was seeking to ensure the disposal of the murderweapon. Under the circumstances, therefore, it was notimproper for the trial court to have allowed the stateto introduce into evidence, under the coconspiratorexception to the hearsay rule, Ryan’s testimony aboutthe statements that he had overheard Russell makeduring the telephone call.

III

The defendant next claims that the trial court abusedits discretion in permitting the state to introduce evi-

dence regarding the Lindley Street shooting and thesubsequent murder of Snead. We disagree.

The following additional facts and procedural historyare relevant to this issue. Prior to trial, the defendantfiled a motion in limine seeking the exclusion of allevidence related to the Lindley Street shooting and theSnead murder (Snead evidence). The defendantasserted that the Snead evidence was not relevant tothe case against the defendant because the defendantwas not implicated in any act of violence against Snead.The defendant further maintained that the prejudicialeffect of the Snead evidence outweighed its probativevalue. The trial court overruled the defendant’s objec-tions and the state introduced the Snead evidencethrough the testimony of a number of witnesses, includ-ing several police officers. The trial court, however,repeatedly admonished the jury, both during the trialand in its final instructions, that the Snead evidencewas admissible for the limited purpose of establishingmotive, intent and identity and, therefore, the jury wasnot to consider the evidence for any other purpose.

On appeal, the defendant renews his claims that theSnead evidence was only marginally relevant and thatits prejudicial effect outweighed its probative value. Wereject both of these contentions.

Well established principles govern our resolution ofthe defendant’s claim. ‘‘Relevant evidence is evidencethat has a logical tendency to aid the trier in the determi-nation of an issue. . . . Evidence is relevant if it tendsto make the existence or nonexistence of any otherfact more probable or less probable than it would bewithout such evidence. . . . To be relevant, the evi-dence need not exclude all other possibilities; it is suffi-cient if it tends to support the conclusion [for which itis offered], even to a slight degree.’’ (Citations omitted;internal quotation marks omitted.) State v. Cerreta, 260Conn. 251, 261–62, 796 A.2d 1176 (2002); see also Conn.Code Evid. § 4-1 (defining relevant evidence as ‘‘evi-dence having any tendency to make the existence ofany fact that is material to the determination of theproceeding more probable or less probable than itwould be without the evidence’’). Furthermore, our rolein reviewing evidentiary rulings of the trial court islimited. ‘‘This court has consistently held that trialcourts are vested with broad discretion in rulings onrelevancy and every reasonable presumption must begiven in favor of the court’s ruling. . . . Rulings onsuch matters will be disturbed on appeal only upona showing of a clear abuse of discretion.’’ (Internalquotation marks omitted.) State v. Watson, 251 Conn.220, 235, 740 A.2d 832 (1999).

Contrary to the defendant’s claim, there can be nodoubt regarding the relevance of the Snead evidence.That evidence established that: (1) Brown was an eye-witness to the Lindley Street shooting; (2) ballistics

tests suggested that the same gun that was used inthe Lindley Street shooting was used to kill Snead; (3)Brown and Clarke gave statements to the police impli-cating Russell in the Lindley Street shooting, therebylinking him to the Snead murder; and (4) Russell hadasked the defendant to kill Brown and Clarke to preventthem from testifying against him. Thus, the Snead evi-dence was critical to explain why Russell had askedthe defendant to kill Brown and Clarke. Indeed, thestate’s case would have been grievously underminedwithout that evidence because the jury would have beenleft to wonder why the state had not demonstrated anymotive for the otherwise inexplicable, execution-stylemurders of an innocent mother and her young child.

Although motive is not an element of any of thecrimes with which the defendant had been charged,‘‘[w]e previously have recognized the significance thatproof 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 motivecan be shown. . . . Evidence tending to show the exis-tence or nonexistence of motive often forms animportant factor in the inquiry as to the guilt or inno-cence of the defendant. . . . This factor is to beweighed by the jury along with the other evidence inthe case.’’ (Internal quotation marks omitted.) State v.Wargo, 255 Conn. 113, 140 n.24, 763 A.2d 1 (2000). Thefacts of the present case graphically illustrate the impor-tance of motive testimony: although the direct evidenceestablishing the defendant’s involvement in the murderswas predicated largely on the testimony of Lee, a readilyimpeachable witness, the state’s case against the defen-dant was buttressed immeasurably by the fact that onlyRussell and his trusted confederates, the defendant firstamong them, had a reason for wanting Brown andClarke dead. See State v. Harris, 182 Conn. 220, 224,438 A.2d 38 (1980) (without disclosed motive, state’sevidence may be so weak that guilt of accused isclouded by reasonable doubt). We can think of fewcases in which motive evidence is more important.18

The defendant nevertheless contends that the Sneadevidence was unduly prejudicial, and, therefore, thetrial court improperly permitted the state to introduceit at trial. We disagree.

‘‘Although relevant, evidence may be excluded by thetrial court if the court determines that the prejudicialeffect of the evidence outweighs its probative value.. . . Of course, [a]ll adverse evidence is damaging toone’s case, but it is inadmissible only if it creates undueprejudice so that it threatens an injustice were it to beadmitted. . . . The test for determining whether evi-dence is unduly prejudicial is not whether it is damagingto the defendant but whether it will improperly arousethe emotions of the jury. . . . The trial court . . .must determine whether the adverse impact of the chal-

lenged evidence outweighs its probative value. . . .Finally, [t]he trial court’s discretionary determinationthat the probative value of evidence is not outweighedby its prejudicial effect will not be disturbed on appealunless a clear abuse of discretion is shown. . . .[B]ecause of the difficulties inherent in this balancingprocess . . . every reasonable presumption should begiven in favor of the trial court’s ruling. . . . Reversalis required only whe[n] an abuse of discretion is mani-fest or whe[n] injustice appears to have been done.’’(Internal quotation marks omitted.) State v. Dehaney,261 Conn. 336, 357–58, 803 A.2d 267 (2002), cert. denied,537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003);see also Conn. Code Evid. § 4-3.

We conclude that the trial court did not abuse itsdiscretion in concluding that the probative value of theSnead evidence outweighed its prejudicial effect. As wehave explained, the evidence was highly probative ofthe defendant’s reason for murdering the victims, andproof of that motive was especially important in viewof the nature of the crimes with which the defendantwas charged and the identity of the victims. Further-more, because the Snead evidence related to prior mis-conduct by Russell, not the defendant, that evidence,although graphic and undoubtedly upsetting, was notlikely to inflame unduly the jurors’ passions against thedefendant. In addition, the trial court’s limiting instruc-tions sufficiently mitigated any possible prejudice thatcould have resulted from the admission of the evidence.In the absence of a clear indication to the contrary, wepresume that the jury followed the court’s instructionsregarding the limited admissibility of the Snead evi-dence.19 See, e.g., State v. Fields, 265 Conn. 184, 207,827 A.2d 690 (2003).

The defendant nevertheless claims that the Sneadevidence was unduly prejudicial because it wasgraphic20 and consumed a substantial amount of timeduring the trial.21 We disagree.

The Snead evidence involved an attempted murder,a murder and the results of forensic testing that linkedthe two incidents. It was not unreasonable, therefore,for the state to call several witnesses to establish thefacts underlying these events. Moreover, while someof the testimony may have been graphic, ‘‘any murderinvolves violent and upsetting circumstances . . . .’’State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert.denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d579 (1989). Because the Snead evidence properly wasbefore the jury, the jury necessarily was exposed tosome such testimony. ‘‘[A]lthough irrelevant evidenceof a gruesome character is inadmissible, [t]he prosecu-tion, with its burden of establishing guilt beyond a rea-sonable doubt, is not to be denied the right to prove[its case] by the most convincing evidence it is able toproduce.’’ (Internal quotation marks omitted.) State v.

Satchwell, 244 Conn. 547, 575, 710 A.2d 1348 (1998). Aswe have explained, the Snead evidence was extremelyimportant—indeed, it was crucial—to the state’s case,and the trial court’s limiting instructions minimized anypossible prejudice that otherwise might have flowedfrom the admission of that evidence. We therefore rejectthe defendant’s claim that the trial court abused itsdiscretion in permitting the state to present theSnead evidence.

IV

The defendant finally claims that certain remarks thatthe state’s attorney had made during closing argumentsdeprived him of a fair trial. Specifically, the defendantmaintains that the state’s attorney improperly: (1) com-mented on the defendant’s postarrest silence eventhough the defendant, at the time of his arrest, had beenadvised of his constitutional right to remain silent inaccordance with Miranda v. Arizona, 384 U.S. 436,478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); (2)suggested that the defendant posed a threat to Lee, thestate’s key witness; and (3) stated that the defendantwould have killed Lee, in addition to the victims, ifhe had not run out of ammunition. Inasmuch as thedefendant failed to object to the remarks that he nowchallenges on appeal, he seeks to prevail under State

v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).22

Although the record is adequate for our review of thedefendant’s claim, we nevertheless conclude that hisclaim must fail because the remarks of the state’s attor-ney did not deprive him of a fair trial.23

We repeatedly have articulated the principles thatgovern our review of claims of prosecutorial impropri-ety during closing arguments. ‘‘[T]he touchstone of dueprocess analysis in cases of alleged prosecutorial mis-conduct is the fairness of the trial, and not the culpabil-ity of the prosecutor. . . . The issue is whether theprosecutor’s conduct so infected the trial withunfairness as to make the resulting conviction a denialof due process. . . . [M]oreover . . . [a defendant isnot entitled to prevail under Golding] whe[n] theclaimed misconduct was not blatantly egregious andmerely consisted of isolated and brief episodes that didnot reveal a pattern of conduct repeated throughoutthe trial. . . . In determining whether the defendantwas denied a fair trial [by virtue of prosecutorial mis-conduct] we must view the prosecutor’s comments inthe context of the entire trial. . . .

‘‘As we previously have recognized, prosecutorialmisconduct of a constitutional magnitude can occur inthe course of closing arguments. . . . When makingclosing arguments to the jury, [however] [c]ounsel mustbe allowed a generous latitude in argument, as the limitsof legitimate argument and fair comment cannot bedetermined precisely by rule and line, and somethingmust be allowed for the zeal of counsel in the heat of

argument. . . . Thus, as the state’s advocate, a prose-cutor may argue the state’s case forcefully, [providedthe argument is] fair and based upon the facts in evi-dence and the reasonable inferences to be drawn there-from. . . . Moreover, [i]t does not follow . . . thatevery use of rhetorical language or device [by the prose-cutor] is improper. . . . The occasional use of rhetori-cal devices is simply fair argument. . . .

‘‘Nevertheless, the prosecutor has a heightened dutyto avoid argument that strays from the evidence ordiverts the jury’s attention from the facts of the case.[The prosecutor] is not only an officer of the court,like every attorney, but is also a high public officer,representing the people of the [s]tate, who seek impar-tial justice for the guilty as much as for the innocent.. . . By reason of his office, he usually exercises greatinfluence upon jurors. His conduct and language in thetrial of cases in which human life or liberty [is] at stakeshould be forceful, but fair, because he represents thepublic interest, which demands no victim and asks noconviction through the aid of passion, prejudice, orresentment. If the accused [is] guilty, he should [none-theless] be convicted only after a fair trial, conductedstrictly according to the sound and well-establishedrules which the laws prescribe. While the privilege ofcounsel in addressing the jury should not be too closelynarrowed or unduly hampered, it must never be usedas a license to state, or to comment upon, or to suggestan inference from . . . facts not in evidence, or to pre-sent matters which the jury ha[s] no right to consider.’’(Citations omitted; internal quotation marks omitted.)State v. Reynolds, 264 Conn. 1, 161–63, 836 A.2d 224(2003).

‘‘In determining whether prosecutorial misconductwas so serious as to amount to a denial of due process,this court, in conformity with courts in other jurisdic-tions, has focused on several factors. . . . Includedamong those factors are the extent to which the miscon-duct was invited by defense conduct or argument . . .the severity of the misconduct . . . the frequency ofthe misconduct . . . the centrality of the misconductto the critical issues in the case . . . the strength ofthe curative measures adopted . . . and the strengthof the state’s case. . . .

‘‘Just as the prosecutor’s remarks must be gauged inthe context of the entire trial, once a series of seriousimproprieties has been identified we must determinewhether the totality of the improprieties leads to theconclusion that the defendant was deprived of a fairtrial. . . . Thus, the question in the present case iswhether the sum total of [the state’s attorney’s alleged]improprieties rendered the defendant’s [trial] funda-mentally unfair, in violation of his right to due process.. . . The question of whether the defendant has beenprejudiced by prosecutorial misconduct, therefore,

depends on whether there is a reasonable likelihoodthat the jury’s verdict would have been different absentthe sum total of the improprieties.’’ (Citations omitted;internal quotation marks omitted.) State v. Thompson,266 Conn. 440, 460, 832 A.2d 626 (2003).

Applying these principles, we conclude that themajority of the challenged remarks were proper. Withrespect to those remarks that were improper, we never-theless are persuaded that there is no reasonable possi-bility that they harmed the defendant. Consequently, wereject the defendant’s claim that the state’s attorney’sclosing arguments deprived him of a fair trial.

A

The defendant first claims that the state’s attorneyimproperly commented, during closing arguments, onthe defendant’s postarrest silence. The defendant con-tends that the comments of the state’s attorney wereimproper because the defendant’s silence followed hisreceipt of Miranda warnings. We conclude that thechallenged remarks were not improper.

The following additional facts are necessary to ourresolution of this claim. On January 21, 1999, FBI agentsarrested the defendant in North Carolina. On January22, 1999, two police detectives from Connecticut inter-viewed the defendant while he was incarcerated. Theycommenced their interview of the defendant by advisinghim of his Miranda rights, including his right to remainsilent. After answering some questions posed by thedetectives, the defendant invoked his right to remainsilent. The jury did not hear testimony concerning thedefendant’s meeting with the two detectives.

Several days later, FBI Special Agent Mark Rozzi,one of the arresting officers, was informed that thedefendant wished to speak with him. When Rozziarrived at the jail where the defendant was being held,the defendant expressly waived his Miranda rights.Rozzi then asked the defendant what he wanted to say.The defendant began the conversation by mentioninga cellular telephone that he had possessed from earlyDecember until the date of his arrest. Rozzi asked thedefendant why he wanted to discuss his cellular tele-phone, and the defendant responded that he wanted toclear his name regarding the murders of a young boyand his mother.24 In particular, the defendant indicatedthat he wanted to explain his whereabouts at the timeof those murders. Rozzi told the defendant to tell himwhere he had been on the day of the murders, fromthe beginning to the end of the day. The defendant,however, began by informing Rozzi that he was at theComfort Inn between 5 and 7 p.m. that day, and thathe went to the mall in Stamford later that evening.Thereafter, he returned to the Comfort Inn whereLatosha McKnight, the defendant’s girlfriend, joinedhim sometime between 9 and 10 p.m. According to the

defendant, McKnight stayed with him in his motel roomuntil 2 or 3 a.m. the next morning. The defendant furtherindicated that he could not recall his whereabouts priorto 5 p.m. on the day of the murders.

During his initial closing argument, the state’s attor-ney stated: ‘‘Remember FBI agent . . . Rozzi? The

defendant wanted to talk to him after he had a couple

of days to think about it. Following his arrest, thedefendant wanted to clear up something. So the defen-dant, professing his innocence to Rozzi—what are thevery first words out of the defendant’s mouth? Checkmy cell phone. How would somebody, if not actuallyat the crime scene, know what was in the media as faras the time the murders were committed? And youhave all the exhibits here. Nowhere in any media articlepresented in this trial is the time of these murderspublished, neither on TV that you saw last week, andnot newspaper articles that were [introduced] early inthe trial. All any of them say is sometime Thursdaynight. And they include the obvious fact after the twohad returned from the grocery store. That’s all theysaid. So how would somebody who wasn’t there, whohad nothing to do with it, who didn’t commit thesecrimes—at that point [he] had a couple of days to thinkabout it—know to key an FBI investigator into his cellphone where amazingly—the rest of the cell phonerecord is before you—amazingly the busiest one quarterof an hour in the entire cell phone record—I don’t meanthis day, I mean the days before and after—starts rightaround when [the victims] got home . . . .

* * *

[A]fter the defendant was arrested . . . [he] had a

chance to think things over for a couple of days, tried

to alibi himself.’’ (Emphasis added.)

In his closing argument, defense counsel vigorouslysought to discredit Lee. Among other inconsistenciesin Lee’s testimony, defense counsel noted that Lee hadgiven one statement in which she claimed to have seenthe defendant leave the victims’ house after the murdersand flee up the street on foot. Defense counsel notedfurther that, in a later statement, Lee indicated that thedefendant had driven away from the murder scene.According to defense counsel, Lee’s story changedbecause the state had received information that thedefendant had preexisting leg injuries that would havemade it impossible for him to run from the scene ofthe murders as Lee originally had reported.

During his rebuttal argument, the state’s attorneystated: ‘‘McKnight backed up the defendant’s claim[that] he indeed was at the Comfort Inn the night ofJanuary 7. Of course, as we know, that was way, wayafter the time the murders were committed. But thatkind of highlights the point that the circumstancesunder which the defendant spoke to the FBI in North

Carolina are so telling. He was arrested. He waited—

I can’t remember how long—at least a couple days,

thought about things . . . [and] [p]ut in a request thatAgent . . . Rozzi come talk to him. The defense com-pletely slid by this whole thing, didn’t even talk aboutit, [does not] want you to think about it. Remember,the defendant asked for the FBI, not vice versa. It wasn’tthe FBI’s case. [The FBI agents] had done their job.They didn’t know anything about the Connecticut mur-der case, at least in [any] detail whatsoever. Remark-ably, the very first words out of the defendant’s mouthwere, ‘check my cell phone.’ The most active one [quar-ter] of an hour in this entire twenty-five day, $4200 bill.’’(Emphasis added.)

The state’s attorney argued further: ‘‘Certainly, thedefendant wasn’t having any trouble traveling up anddown the east coast back in the fall of 1998. He hadno trouble going to New York City, shopping for drugs,escorting his girlfriends around. All of his associates. . . indicate [that] he was getting around fine. In fact,what did he himself have to say about his ability to getaround? He did talk to Agent Rozzi. He thought about

things—what he was going to say to Rozzi before he

talked to him. Do you think if for a moment he actuallyhad been physically impaired back in January of 1999that he would have failed to point that fact out to Rozzi,[that he could not] even walk.’’ (Emphasis added.)

With these facts in mind, we set forth the law applica-ble to the defendant’s claim. ‘‘In Doyle [v. Ohio, 426U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)] . . .the United States Supreme Court held that the impeach-ment of a defendant through evidence of his silencefollowing his arrest and receipt of Miranda warningsviolates due process. The court based its holding [on]two considerations: First, it noted that silence in thewake of Miranda warnings is insolubly ambiguous andconsequently of little probative value. Second and moreimportant[ly], it observed that while it is true that theMiranda warnings contain no express assurance thatsilence will carry no penalty, such assurance is implicitto any person who receives the warnings. In such cir-cumstances, it would be fundamentally unfair and adeprivation of due process to allow the arrested per-son’s silence to be used to impeach an explanationsubsequently offered at trial. . . . The court . . . reaf-firmed Doyle’s reasoning in Wainwright v. Greenfield,474 U.S. 284, 290, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986),in which it held that the defendant’s silence followinghis arrest and receipt of Miranda warnings could notbe used at trial to rebut his defense of insanity. Thecourt reasoned: The point of the Doyle holding is thatit is fundamentally unfair to promise an arrested personthat his silence will not be used against him and there-after to breach that promise by using the silence toimpeach his trial testimony. It is equally unfair to breachthat promise by using silence to overcome a defendant’s

plea of insanity. . . .

‘‘[A]lthough Doyle prohibits impeachment of a defen-dant with evidence of his post-Miranda silence, weexpressly stated in [State v. Plourde, 208 Conn. 455,468, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034,109 S. Ct. 847, 102 L. Ed. 2d 979 (1989)] that it also isfundamentally unfair . . . and, therefore, a deprivationof due process, for the state to use evidence of a defen-dant’s post-Miranda silence as affirmative proof at trial. . . .’’ (Citations omitted; internal quotation marksomitted.) State v. Montgomery, 254 Conn. 694, 712–14,759 A.2d 995 (2000). It therefore is constitutionallyimpermissible for the state to use a defendant’s post-Miranda silence either as affirmative proof of guilt orto impeach the defendant.

We conclude, however, that the references of thestate’s attorney to the defendant’s post-Miranda silencewere not prohibited by the holdings of Doyle and itsprogeny. With respect to the defendant’s statementsregarding his cellular telephone, the state’s attorney didnot ask the jury to infer that the defendant’s silence afterhis arrest was suggestive of guilt. Rather, the state’sattorney merely was underscoring the fact that, in hisview, the defendant had contrived an alibi before com-mitting the murders—namely, the record of incomingand outgoing cellular telephone calls at or around thetime of the murders—and then, after his arrest and aspart of an orchestrated, preconceived plan to exculpatehimself, he contacted Rozzi to inform him of that alibi.Moreover, the jury had no knowledge that the defendanthad met with the two detectives from Connecticut sev-eral days earlier. Similarly, the state’s attorney did notimproperly impugn the defendant’s silence when hesuggested that, because the defendant had plannedwhat he was going to say before requesting to speakwith Rozzi, he would have told Rozzi about any injurythat he purportedly had on the day of the murders ifhe indeed had sustained such an injury. Although thestate’s attorney adverted to the fact that the defendanthad waited several days before asking to speak withRozzi, that reference contained no express or impliedconnection between the defendant’s silence and hisguilt.

B

The defendant next claims that the state’s attorney,in his rebuttal argument, improperly assailed the defen-dant’s character by stating that he was capable of, andwilling to commit, uncharged and unproven acts of vio-lence against Lee, one of the state’s witnesses. Thestate contends that the challenged statements were notimproper because they were reasonable comments onthe evidence and, even if they were improper, theynevertheless were not part of a pattern of egregiousmisconduct requiring reversal. We conclude that thechallenged remarks do not warrant reversal of the

defendant’s conviction.

Certain additional facts are necessary to our disposi-tion of this claim. During the state’s rebuttal argument,the state’s attorney alluded several times to Lee’s reasonto fear the defendant. Specifically, in referring to anightmare that Lee claimed to have had about the defen-dant and Russell, the state’s attorney commented:‘‘[T]hat the Peelers would seek revenge on [Lee] fortestifying is not an illogical concern at all, all thingsconsidered here.’’ Later, in positing why Lee had writtenletters to her former landlord disavowing any knowl-edge of the killings, the state’s attorney argued: ‘‘Whyis she writing letters? You know clearly from thosesurveillance recordings what [the landlord’s] positionon this whole thing was. He was vehement [that] sheshould keep her mouth shut. I don’t blame him. Thisis all about murdering witnesses.’’ Finally, the state’sattorney argued that Lee’s initial statement to the policewas incomplete or inaccurate because Lee had ‘‘seenthe night before what the Peelers do to witnesses.’’

We reject the defendant’s claim that these commentswere improper. First, there was extensive admissibleevidence concerning the defendant’s motive for com-mitting the crimes charged, namely, to eliminate crucialstate witnesses who were capable of linking Russell,the defendant’s brother, to extremely serious crimes,including murder. Indeed, Lee herself testified that shehad been threatened by Garner, an apparent coconspir-ator, who warned her that both she and her entirehousehold would be killed if she told anyone aboutthe murders of Brown and Clarke. Furthermore, thecomments of the state’s attorney followed defensecounsel’s closing argument in which he attacked Lee’scredibility by referring to inconsistencies in her directtestimony, her prior statements to the police and aletter that she had written to her former landlord. Thechallenged remarks, therefore, provided the jury withan alternate explanation for the inconsistencies high-lighted by defense counsel. See, e.g., State v. Burton,258 Conn. 153, 169, 778 A.2d 955 (2001) (prosecutormay present jury with alternative explanation for incon-sistencies in witness’ statements when defendant hasengaged in lengthy attack on witness’ credibility). Con-sequently, it was not unreasonable for the state’s attor-ney to argue that Lee had reason to fear the defendantand that this fear had caused her to change her versionof the facts.

C

The defendant’s final claim of misconduct involvesthe following statement by the state’s attorney duringhis rebuttal argument: ‘‘The incredible thing about . . .Lee is she’s a survivor. I don’t mean her [medical condi-tion] and her crack. I mean she survived that night,January 7, 1999. If the defendant had his brother’s Glocksemi-automatic pistol, she wouldn’t be alive, no ques-

tion. The problem with using the six shooter is [thatthe defendant] didn’t have a spare bullet for [Lee]. Hehad to shoot . . . Clarke twice because she made itup to the telephone. I don’t think he had to shoot[Brown] four times, but he did. He didn’t have anotherbullet. Who would have cared if [Lee] got killed?’’

The defendant contends that the foregoing argumentwas improper inasmuch as the state adduced no evi-dence that the defendant either had attempted to killor had planned to kill Lee. We agree. ‘‘A prosecutor, infulfilling his duties, must confine himself to the evi-dence in the record. . . . Statements as to facts thathave not been proven amount to unsworn testimony,which is not the subject of proper closing argument.’’(Citations omitted; internal quotation marks omitted.)State v. Alexander, 254 Conn. 290, 306, 755 A.2d 868(2000). This argument was nothing more than rank spec-ulation designed to inflame the passions of the jurorsagainst the defendant.

Although the comments were highly improper, weare persuaded that, in the particular context of thiscase, they did not deprive the defendant of a fair trial.Although, in other circumstances, the argument mightbe so prejudicial as to require a new trial, in the presentcase, there was ample evidence properly before thejury regarding the willingness of the defendant and hiscoconspirators to resort to murder to silence prospec-tive witnesses. Indeed, the state’s evidence establishedconvincingly that Brown and Clarke were murdered forthat very reason. We find it significant, also, that defensecounsel made no contemporaneous objection to thechallenged remarks, presumably because he did not‘‘view the alleged impropriety as prejudicial enough tojeopardize seriously the defendant’s right to a fair trial.’’State v. Reynolds, supra, 264 Conn. 165. Finally, thetrial court’s instruction to the jury that the argumentsof counsel are not evidence likely mitigated any harmcaused by the improper argument.25 See id., 131 (pre-sumption that jury follows court’s instructions absentcontrary indication). For all of the foregoing reasons,we conclude that the improper argument of the state’sattorney does not mandate reversal of the defen-dant’s conviction.

The judgment is affirmed.

In this opinion the other justices concurred.1 General Statutes § 53a-54a provides in relevant part: ‘‘(a) A person is

guilty of murder when, with intent to cause the death of another person,he causes the death of such person . . . .’’

2 General Statutes § 53a-48 provides in relevant part: ‘‘(a) A person isguilty of conspiracy when, with intent that conduct constituting a crime beperformed, he agrees with one or more persons to engage in or cause theperformance of such conduct, and any one of them commits an overt actin pursuance of such conspiracy. . . .’’

3 The trial court sentenced the defendant to a term of twenty years impris-onment, to run consecutive to a previously imposed federal sentence ofthirty-five years imprisonment for the commission of certain federal narcot-ics offenses.

4 The defendant initially appealed to the Appellate Court. Because thedefendant should have taken his appeal directly to this court; see GeneralStatutes § 51-199 (b) (3); his appeal was transferred to this court pursuantto Practice Book § 65-4.

5 We hereinafter refer to this incident as the Lindley Street shooting.6 When Garner mentioned Lee’s ‘‘whole house,’’ he apparently was refer-

ring to all of the persons who lived in Lee’s house.7 General Statutes (Rev. to 1997) § 53a-54b provides in relevant part: ‘‘A

person is guilty of a capital felony who is convicted of . . . (8) murder oftwo or more persons at the same time or in the course of a single transaction;or (9) murder of a person under sixteen years of age.’’

Subsections (8) and (9) of General Statutes (Rev. to 1997) § 53a-54bcurrently are codified at subsections (7) and (8) of General Statutes § 53a-54b as a result of the legislature’s redesignation of certain subsections of§ 53a-54b in 2001. See Public Acts 2001, No. 01-151, § 3.

8 The defendant also was charged with one count of conspiracy to partici-pate in an enterprise operating through a pattern of racketeering activityin violation of General Statutes §§ 53-395 and 53a-48. The trial court subse-quently granted the defendant’s motion to sever this count from the othercounts. See State v. Peeler, Superior Court, judicial district of Waterbury,Docket No. CR99-148397 (October 12, 2000).

9 We use the initials of the venireperson to protect her legitimate privacyinterests. E.g., State v. Reynolds, 264 Conn. 1, 116 n.109, 836 A.2d 224 (2003).

10 When asked whether she previously had been in a courtroom, A.F.stated, inter alia: ‘‘[M]yself, in my earlier days, I’ve been before the judge.’’

11 As we previously indicated, the defendant was found not guilty of twocounts of capital felony. If the defendant had been found guilty of the crimeof capital felony, however, the state indicated that it would have sought thedeath penalty. In such circumstances, the same panel of jurors that wasresponsible for deciding the guilt phase of the trial would have determinedthe defendant’s sentence during the penalty phase, a fact that the partiesnecessarily were permitted to consider in formulating their questions toprospective jurors and in connection with the exercise of peremptory chal-lenges.

12 The sixth amendment to the United States constitution provides inrelevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him . . . .’’

13 We note that the trial court improperly instructed the jury that Ryan’stestimony regarding Russell’s statements could be considered only in regardto the conspiracy charge. When a hearsay statement is admissible underthe coconspirator exception to the hearsay rule, its admissibility is notlimited to proving the existence of the conspiracy or any other element ofthe conspiracy charge. As long as the statement at issue is relevant to theother charges, the jury may consider it for the truth of the matter assertedin connection with those other charges. See 2 C. McCormick, Evidence (5thEd. 1999) § 259, p. 159 (‘‘[a] conspiracy need not be formally charged forcoconspirator statements to be admissible if a conspiracy in fact exists’’).

14 The defendant does not contend that the evidence was insufficient toestablish the existence of a conspiracy.

15 The state adduced evidence at trial that both Russell and the defendantsought to create alibis for the evening of the murders. For example, althoughthe records pertaining to Russell’s electronic ankle bracelet indicate thathe generally was not at home until his 9 p.m. curfew, on the day of themurder, he did not leave his house after 3 p.m.

16 Of course, the defendant was entitled to cross-examine Ryan about themeaning of the statements, and he did so.

17 Neither the state nor the defendant raised the issue of whether Russell’squestion actually constituted hearsay.

18 The defendant asserts that there was no need for the jury to have heardthe Snead evidence because it would have been sufficient, for purposes ofdemonstrating the defendant’s reason for killing the victims, for the jurysimply to have learned that Russell had asked the defendant to kill them.This argument is specious. The reason why Russell wanted the victimskilled was a critically important component of the state’s case against thedefendant, and the state was not required to truncate its proof to accommo-date the defendant’s interest in avoiding the introduction of such highlyrelevant, albeit damaging, evidence of motive.

19 The defendant contends that the Snead evidence unfairly prejudicedhim because the jury likely concluded that he must be a murderer like hisbrother. We disagree that the jury was likely to have come to that conclusion

simply because Russell was the defendant’s brother. Moreover, the trialcourt repeatedly instructed the jury that the defendant was not being triedfor the Snead shootings, that the Snead evidence was not probative of thedefendant’s character or propensity to commit crimes and that the evidencewas offered for the limited purpose of establishing motive, intent and iden-tity. As we have explained, we have no reason to believe that the jurydisregarded those instructions.

20 In particular, the defendant refers to the testimony of a police detectivewho arrived at the barbershop just after Snead was shot. The detectivestated that when she tried to speak to Snead, ‘‘[h]e was kind of just moaning.He seemed like he was in a lot of pain.’’

21 The state called a total of eight witnesses to testify about the LindleyStreet shooting and the Snead murder.

22 In State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), we held that‘‘a defendant can prevail on a claim of constitutional error not preservedat trial only if all of the following conditions are met: (1) the record isadequate to review the alleged claim of error; (2) the claim is of constitutionalmagnitude alleging the violation of a fundamental right; (3) the allegedconstitutional violation clearly exists and clearly deprived the defendant ofa fair trial; and (4) if subject to harmless error analysis, the state has failedto demonstrate harmlessness of the alleged constitutional violation beyonda reasonable doubt.’’ (Emphasis in original.) Id., 239–40. ‘‘In the absence ofany one of these conditions, the defendant’s claim will fail.’’ Id., 240.

23 Thus, the defendant’s claim fails under the third prong of Golding. Seefootnote 22 of this opinion.

24 Rozzi was not then, and never has been, involved in the investigationof the murders of Brown and Clarke. Moreover, unbeknownst to Rozzi,records for the defendant’s cellular telephone revealed that there were bothincoming and outgoing calls at or around the time of the murders. Accordingto the state’s version of the offenses, the defendant planned these incomingand outgoing calls to buttress his alibi that he was otherwise occupied atthe time of the murders.

25 The trial court instructed the jury in relevant part: ‘‘You should keepin mind [that] the arguments and statements by the attorneys in final argu-ments or during the course of the case were not evidence. You should notconsider as evidence their recollections of the evidence nor their personalbeliefs as to any facts or as to the credibility of any witness or any facts whichany attorney may have presented to you in argument from that attorney’sknowledge which [were] not supported by the evidence during the courseof the trial. Furthermore, I emphasize to you that if there was any differencebetween what any attorney recalls as the evidence or what I recall as theevidence and what you recall as the evidence, it is your recollection thatcontrols. Follow your recollection, not anyone else’s. . . .’’