State Of Connecticut v. Shelvonn Jones

The state and the defendant, Shelvonn

Jones, appeal from the judgment of the Appellate Court,

which reversed the judgment of conviction, rendered

after a jury trial, of assault in the second degree in

violation of General Statutes § 53a-60 (a) (2). See State

v. Jones, 139 Conn. App. 469, 470, 487, 56 A.3d 724

(2012). The state claims that the Appellate Court

improperly concluded that the defendant was denied

his right to a fair trial due to certain alleged improprieties

that the senior assistant state’s attorney (prosecutor)

committed during his cross-examination of the

defendant and in closing argument. The defendant

claims that the Appellate Court incorrectly concluded

that the trial court properly had denied his motion to

suppress evidence of the knife that was used in the

commission of the assault. The defendant also raises a

claim that the Appellate Court did not address, namely,

that the trial court improperly instructed the jury on

the initial aggressor exception to self-defense. Because

we agree with the state’s claim and reject the defendant’s

claims, we reverse the judgment of the Appellate

Court and remand the case to that court with direction

to affirm the judgment of the trial court.

The following evidence was adduced by the state at

trial. On May 20, 2009, the fifty-three year old victim,

George Harris, who resided on New Street in the city

of Danbury with his sister and niece, arrived home

from work and saw the thirty-two year old defendant

standing in his driveway, arguing with Harris’ sister,

Mary Ann Harrison, and Larry Johnson, a private security

guard employed by Harrison. Johnson told the

defendant to leave the property, but the defendant

would not do so. Harris turned to his niece and asked

whether the defendant was the man she previously had

told to stay off their property, and she responded in

the affirmative. Harris then reiterated Johnson’s directive

that the defendant leave the property immediately.

As the defendant was leaving, he turned to Harris and

stated, ‘‘I’ll get you.’’

On June 9, 2009, at approximately 6 p.m., Harris was

walking home from work on Kennedy Avenue in Danbury

when the defendant approached him in front of

the bus station, displayed a knife,1 and said, ‘‘[w]hat’s

up, Old School?’’ Harris was frightened by the defendant’s

gesture and kept walking.

About one hour after arriving home, Harris decided

to go for a bike ride. While riding down Beaver Street

in Danbury, he saw a man walking toward him. As the

man got closer, Harris realized that it was the defendant.

Harris was still upset about their earlier encounter and

stopped his bicycle to ask the defendant, ‘‘what the

problem was.’’ As Harris approached him, however,

the defendant began swinging the knife at him ‘‘like a

wild man.’’

Harris tried to run away, but the defendant pursued

him and slashed his back. Harris jumped back on his

bicycle, but, instead of heading home, which would

have required Harris to pedal uphill with his back

exposed to the defendant, he rode the bicycle downhill

into the defendant, knocking him to the ground. He

then jumped off of the bicycle and was able to subdue

the defendant by pulling the defendant’s sweatshirt over

his arms and head. By this time, traffic in the street

had backed up, and a number of drivers were blowing

their horns and using their cell phones to call the police.

Harris, who never had previously been in any trouble

with the law, feared being arrested, so he released the

defendant and ran home.

Officers Michael Reo and David Williams of the Danbury

Police Department, who were the first officers to

arrive on the scene, found the defendant standing in the

roadway, visibly intoxicated. The defendant informed

them that he had been in the neighborhood looking

for some marijuana when a man approached him on a

bicycle and asked if he could change a $50 bill. The

defendant told the police that he handed the man two

$20 bills but then was unable to find any smaller bills,

so he asked the man to return the two $20 bills. The

man refused, and the two men tussled until they heard

the sound of police sirens, at which point the man ran

off with the defendant’s money. After relating his story,

the defendant asked the officers if they would drive

him home. Reo agreed to give the defendant a ride

because he considered the defendant to be the victim

of a crime and because the defendant was intoxicated.

Meanwhile, when Harris arrived home, he realized

that he had sustained serious cuts to his chest and back.

After consulting with his sister, Harris decided to call

the police. The responding officer summoned paramedics

to transport Harris to the hospital, where he received

eighteen stitches in his chest and several in his back.

The responding officer also broadcast the defendant’s

name over the police radio system, identifying him as

Harris’ assailant. When Reo heard the broadcast, he

returned to the defendant’s residence and placed him

under arrest.

Officer Matthew Georgoulis of the Danbury Police

Department assisted in arresting the defendant.

According to Georgoulis, before placing the defendant

into the back of his vehicle, Georgoulis performed a

routine pat down of the defendant for weapons but did

not have him empty his pockets. Later, while leading

the defendant into the police station, Georgoulis

noticed the defendant glance back at the vehicle, which

struck Georgoulis as suspicious. Georgoulis further

stated that he subsequently searched the backseat of his

vehicle and discovered a small plastic baggie containing

marijuana under the seat. Georgoulis testified that the

baggie had not been there when he inspected the vehicle

prior to his shift, and no one had ridden in the backseat

before the defendant had done so.

The defendant was charged with attempt to commit

assault in the first degree in violation of General Statutes

§§ 53a-59 (a) (1) and 53a-49 (a) (2), assault in the

second degree in violation of § 53a-60 (a) (2), and possession

of marijuana in violation of General Statutes

§ 21a-279 (c). At trial, the defendant testified in his

own defense and provided the following account of

his encounters with Harris. On the night in question,

approximately one hour before the altercation, the

defendant was standing on Spring Street in Danbury

when Harris approached him and asked if he had any

crack cocaine for sale. The defendant told Harris that

he was not a drug dealer and ‘‘to get the ‘F’ out of here,’’

which, according to the defendant, angered Harris. The

defendant testified that he had never laid eyes on Harris

before that moment but previously had ‘‘bumped heads’’

with members of Harris’ family and was acquainted

with Johnson, the private security guard who worked

for Harris’ sister. The defendant also testified that he

did not display a knife during his initial encounter

with Harris.

Approximately one hour later, the defendant was

walking up Beaver Street in an extremely intoxicated

state when he saw Harris coming toward him on a

bicycle. According to the defendant, Harris stopped and

commented about ‘‘the situation’’ between them earlier

that evening, to which the defendant replied, ‘‘I apologize

man, I want no problems . . . .’’ The defendant

testified that Harris then asked him if he had change

for a $50 bill because he needed it to buy some crack

cocaine. The defendant stated that he handed Harris

two $20 bills and, while searching his pockets for additional

change, saw Harris place the two $20 bills in his

pocket. A tussle ensued, and Harris threw his bicycle

at the defendant, which caused the defendant to fall to

the ground. When the defendant stood up, he pulled a

knife out of his pocket and told Harris, ‘‘listen, I don’t

want no problems, just leave me alone, you got the

money, go about your business.’’ The defendant stated

that it was never his intention to harm Harris with the

knife, only to scare him away, and that he had no idea

how Harris received the cuts to his chest and back. The

defendant surmised that Harris might have sustained

the wounds when the two men were scuffling on the

ground. According to the defendant, shortly after the

fight started, drivers began to blow their horns. When

the defendant turned to look at them, Harris rushed

toward him, knocked him to the ground and subdued

him by pulling his sweatshirt over his head. Throughout

the struggle, the defendant held tightly to the knife so

that Harris could not take it away and use it against

him, which he believed Harris was trying to do. The

defendant denied ever telling the police that he was in

the area to buy marijuana. The defendant also denied

ever being on Kennedy Avenue or anywhere near the

bus station on the evening in question, as Harris had testified.

After the defense rested its case, Harris was recalled

by the state as a rebuttal witness and stated that, contrary

to the defendant’s assertions, he did not seek

to purchase drugs from the defendant on the night in

question. Harris also explained that he had not taken

any illegal drugs since graduating from high school,

explaining that his former employer of thirty years,

Kimberly-Clark Corporation, had a mandatory drug testing

policy. The state also called Harrison and Johnson

as rebuttal witnesses. Both of them testified, contrary

to the defendant’s testimony that he had never seen

Harris before the night of the altercation, that the defendant

had threatened Harris approximately one month

before the encounter in Harris’ driveway. In closing

arguments, both the prosecutor and defense counsel

maintained that the assault charges boiled down to a

credibility contest between the defendant and Harris

that required the jury to determine which one of them

was telling the truth about the circumstances surrounding

their altercation. In particular, the prosecutor

argued that the defendant had fabricated the story about

the larceny and Harris’ purported attempt to purchase

drugs from him because the police had arrived before

the defendant could flee the scene, and he needed to

explain his presence there. Defense counsel, on the

other hand, asserted that the jury should discredit Harris’

testimony that he was not a drug user and that he

just happened to encounter the defendant while Harris

was riding his bicycle. Counsel further argued, among

other things, that a normal person would not ride his

bicycle through a ‘‘drug infested’’ area and that Harris’

real reason for being there was to buy drugs and to

confront the defendant about his refusal to sell him

drugs earlier that evening. The jury subsequently found

the defendant not guilty of attempt to commit assault

in the first degree and possession of marijuana but

found him guilty of assault in the second degree. Thereafter,

the trial court rendered judgment in accordance

with the verdict and sentenced the defendant to a prison

term of four years and nine months.

On appeal to the Appellate Court, the defendant

claimed, inter alia, that the prosecutor violated the proscription,

first articulated by this court in State v. Singh,

259 Conn. 693, 793 A.2d 226 (2002), against asking a

witness ‘‘to characterize another witness’ testimony as

a lie, mistaken or wrong.’’ Id., 712. In support of this

claim, the defendant identified three questions posed

by the prosecutor on cross-examination that compelled

the defendant to comment on the veracity of Harris and

certain police officers. The three questions were: (1)

‘‘[A]ll this testimony from . . . Harris then about the

bus stop; that was a lie?’’ (2) ‘‘And all the police officers’

testimony [about the robbery] is a lie?’’ (3) ‘‘So, what

Officer Georgoulis testified to today [about finding marijuana

in the backseat of his police car] is all false?’’

In addition, during closing argument, the prosecutor

paraphrased the defendant’s answer when the defendant

was asked whether he had told the police that he

was trying to buy marijuana prior to the altercation as,

‘‘I never said that; the police are lying apparently.’’ The

state conceded that the challenged questions and closing

argument were improper under Singh but argued

that they were not so prejudicial as to deprive the defendant

of a fair trial.

The Appellate Court accepted the state’s concession

of impropriety but disagreed with its claim that the

improprieties were harmless. See State v. Jones, supra,

139 Conn. App. 475–77. In reaching its determination,

the Appellate Court applied the six factors set forth in

State v. Williams, 204 Conn. 523, 540, 529 A.2d 653

(1987), for determining whether the prosecutorial

improprieties were sufficiently serious as to amount to

a denial of due process.2 See State v. Jones, supra,

477–85. The Appellate Court reasoned that, although the

improprieties at issue were not pervasive and defense

counsel had not objected to any of them; see id., 477–78,

482; the improprieties were severe because the prosecutor

had compelled the defendant to comment on the

veracity of Harris and the police officers; see id., 478–79;

the improprieties bore directly on the central issue in

the case, namely, the defendant’s credibility versus that

of the state’s witnesses; id., 480–81; the state’s case was

not particularly strong; id., 482; the improprieties were

not invited by the defense; id.; and no curative instructions

were given. Id. The Appellate Court observed that

when these same Williams factors were present in

other cases involving a violation of Singh; see, e.g.,

State v. Ceballos, 266 Conn. 364, 414–15, 832 A.2d 14

(2003); this court had concluded that the defendants in

those cases had been denied their right to a fair trial.

See State v. Jones, supra, 483–84.

In light of its determination that the defendant was

entitled to a new trial due to the Singh violations, the

Appellate Court did not address the defendant’s claims

that the prosecutor had engaged in several other

instances of impropriety and that the trial court improperly

had instructed the jury on the initial aggressor

exception to self-defense. Id., 471 n.2, 477. Because the

issue was likely to arise again at a retrial, however, the

Appellate Court did consider the defendant’s contention

that the trial court improperly had denied his motion

to suppress evidence of the knife that he had used in

his altercation with Harris. Id., 470–71. The Appellate

Court rejected this claim, concluding that the record

supported the trial court’s finding that the defendant

had voluntarily surrendered the knife to Reo prior to

getting into the police car for a ride home and that the

police did not exceed the scope of that initial consent.

Id., 485–86. The state’s and the defendant’s certified

appeals followed.3

On appeal, the state claims that the Appellate Court

incorrectly concluded that the defendant was substantially

prejudiced by the improprieties at issue in this

case. Specifically, the state argues that the Appellate

Court’s analysis of the prejudicial effect of the improprieties

was seriously flawed because that court (1) failed

to consider that two of the improprieties were directed

at the drug charge and thus were unlikely to have prejudiced

the defendant in view of the fact that the jury

had found him not guilty of that charge, (2) never considered

the reduced prejudicial effect of the ‘‘were they

lying’’ questions in a case that presents a ‘‘pure credibility

contest’’ between a defendant and the state’s witness,

and (3) mistakenly assumed that such improprieties

jeopardized the jurors’ understanding of the

state’s burden of proof in all cases.

In his appeal, the defendant claims that the trial

court’s charge to the jury improperly broadened the

initial aggressor doctrine and deprived him of his right

to assert a defense of self-defense in that it failed to

instruct the jury (1) to analyze Harris’ perceptions from

the perspective of a reasonable person, and (2) that a

person cannot become an initial aggressor on the basis

of words alone. The defendant also claims that the

Appellate Court was incorrect in concluding that the

trial court properly denied his motion to suppress the

knife that he had used in his altercation with Harris.

I

STATE’S APPEAL

We first address the state’s claim that the Appellate

Court incorrectly concluded that prosecutorial improprieties

deprived the defendant of a fair trial. Before

addressing the merits of this claim, we set forth the

standard of review and legal principles governing claims

of prosecutorial impropriety. ‘‘In analyzing claims of

prosecutorial impropriety, we engage in a two step process.

. . . First, we must determine whether any

impropriety in fact occurred; second, we must examine

whether that impropriety, or the cumulative effect of

multiple improprieties, deprived the defendant of his

due process right to a fair trial. . . . To determine

whether the defendant was deprived of his due process

right to a fair trial, we must determine whether the sum

total of [the prosecutor’s] improprieties rendered the

defendant’s [trial] fundamentally unfair . . . . The

question of whether the defendant has been prejudiced

by prosecutorial [impropriety], therefore, depends on

whether there is a reasonable likelihood that the jury’s

verdict would have been different absent the sum total

of the improprieties.’’ (Internal quotation marks omitted.)

State v. Gould, 290 Conn. 70, 77–78, 961 A.2d 975

(2009). Accordingly, it is not the prosecutorial improprieties

themselves but, rather, the nature and extent of

the prejudice resulting therefrom that determines

whether a defendant is entitled to a new trial. See id.

In State v. Singh, supra, 259 Conn. 693, this court

held, in accordance with the majority rule in other jurisdictions,

‘‘that it is improper to ask a witness to comment

on another witness’ veracity.’’ Id., 706. ‘‘Several

reasons underlie the prohibition on [asking] such questions.

First, it is well established that determinations

of credibility are for the jury, and not for witnesses.

. . . Consequently, questions that ask a defendant to

comment on another witness’ veracity invade the province

of the jury. . . . Moreover, [a]s a general rule,

[such] questions have no probative value and are

improper and argumentative because they do nothing

to assist the jury in assessing witness credibility in its

fact-finding mission and in determining the ultimate

issue of guilt or innocence.’’ (Citations omitted; internal

quotation marks omitted.) Id., 707–708.

‘‘Second, questions of this sort also create the risk

that the jury may conclude that, in order to [find] the

defendant [not guilty], it [first] must find that the witness

has lied. . . . This risk is especially acute when

the witness is a government agent in a criminal case.

. . . A witness’ testimony, however, can be unconvincing

or wholly or partially incorrect for a number of

reasons without any deliberate misrepresentation being

involved . . . such as [in cases involving] misrecollection,

failure of recollection or other innocent reason[s].’’

(Citations omitted; internal quotation marks omitted.)

Id., 708.

‘‘Similarly, courts have long admonished prosecutors

to avoid statements to the effect that if the defendant

is innocent, the jury must conclude that witnesses have

lied. . . . The reason for this restriction is that [t]his

form of argument . . . involves a distortion of the government’s

burden of proof. . . . Moreover, like the

problem inherent in asking a defendant to comment

on the veracity of another witness, such arguments

preclude the possibility that the witness’ testimony conflicts

with that of the defendant for a reason other than

deceit.’’ (Citations omitted; footnote omitted; internal

quotation marks omitted.) Id., 709–10; see also State v.

Emmett, 839 P.2d 781, 787 (Utah 1992) (asking defendant

to comment on another witness’ veracity is unfairly

prejudicial because it suggests that ‘‘[the] witness is

committing perjury even though there are other explanations

for the inconsistency . . . [and such questioning]

puts the defendant in the untenable position

of commenting on the character and motivations of

another witness who may appear sympathetic to the

jury’’).

In light of the state’s concession that the prosecutor

violated Singh first by asking the defendant to comment

on the veracity of other witnesses and then by referring

to the defendant’s response to one of those questions

in closing argument, we need only determine whether

these improprieties deprived the defendant of a fair

trial. In addressing this question, we focus on the factors

set forth in State v. Williams, supra, 204 Conn. 540; see

footnote 2 of this opinion; namely, the extent to which

the improprieties were invited by the defense, the severity

and frequency of the improprieties and their centrality

to the critical issues in the case, and the strength

both of the state’s case and of any curative measures

taken by the court.

We further note that, ‘‘[r]egardless of whether the

defendant has objected to an . . . [impropriety], a

reviewing court must apply [these] . . . factors to the

entire trial, because there is no way to determine

whether the defendant was deprived of his right to a

fair trial unless the [impropriety] is viewed in light of

the entire trial.’’ (Internal quotation marks omitted.)

State v. Maguire, 310 Conn. 535, 560, 78 A.3d 828 (2013).

‘‘This does not mean, however, that the absence of an

objection at trial does not play a significant role in the

application of the [foregoing] factors. To the contrary,

the determination of whether a new trial or proceeding

is warranted depends, in part, on whether defense counsel

has made a timely objection to any [incident] of the

prosecutor’s improper [conduct]. When defense counsel

does not object, request a curative instruction or

move for a mistrial, he presumably does not view the

alleged impropriety as prejudicial enough to jeopardize

seriously the defendant’s right to a fair trial.’’ (Internal

quotation marks omitted.) Id., 560–61.

Finally, ‘‘when a defendant raises on appeal a claim

that improper remarks by the prosecutor deprived [him]

of his constitutional right to a fair trial, the burden is

on the defendant to show, not only that the remarks

were improper, but also that, considered in light of the

whole trial, the improprieties were so egregious that

they amounted to a denial of due process.’’4 State v.

Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012). It

is also well established that, when there are multiple

charges in a case, the reviewing court must consider the

effect of the prosecutorial impropriety on each charge

separately because, ‘‘[d]epending on the outcome of

the analysis, the conviction on some charges may be

allowed to stand, while others may be reversed.’’ State

v. Spencer, 275 Conn. 171, 182, 881 A.2d 209 (2005).

Applying the foregoing principles to the present case,

we agree with the state that the Appellate Court incorrectly

determined that the Singh violations deprived

the defendant of a fair trial. We reach this conclusion

for several reasons. First, in considering the severity

of such improprieties, we accord considerable weight

to the fact that defense counsel did not object to any

of those improprieties, a strong indicator that counsel

did not perceive them as seriously jeopardizing the

defendant’s fair trial rights. See, e.g., State v. Ceballos,

supra, 266 Conn. 414 (emphasizing ‘‘that counsel’s failure

to object at trial, while not by itself fatal to a defendant’s

claim, frequently will indicate on appellate

review that the challenged comments [did] not rise to

the magnitude of constitutional error’’ [emphasis omitted]);

see also State v. Warholic, 278 Conn. 354, 402,

897 A.2d 569 (2006) (defendant who fails to object to

improper remarks bears significant responsibility for

fact that alleged improprieties went uncured). Second,

and more important, as the Appellate Court observed,

the improprieties at issue were neither pervasive nor

confined to a discrete portion of the trial; State v. Jones,

supra, 139 Conn. App. 482; but, rather, consisted of

four remarks spread over the course of a five day trial.

Moreover, although defense counsel sought no curative

measures, the trial court, both at the commencement

and at the conclusion of the trial, instructed the jury

that the ‘‘testimony of a police officer is entitled to no

special or exclusive weight merely because it comes

from a police official,’’ and that the jurors therefore

‘‘must determine the credibility of police officers in the

same way as you would any other witness[es] . . . .’’5

These instructions, which the jury is presumed to have

followed, would have ameliorated the harmful effect of

all but one of the improprieties.

Perhaps the most significant reason why the defendant

in the present case was not unduly prejudiced by

the prosecutor’s Singh violations is that two of them—

arguably the two most serious violations because they

pitted the defendant’s credibility directly against that

of the police—were not directed at the assault charge

but, rather, at the drug charge, which resulted in an

acquittal. Specifically, on cross-examination, the prosecutor

asked the defendant, ‘‘[s]o, what Officer Georgoulis

testified to today [about finding marijuana in the

backseat of his police car] is all false?’’ The defendant

responded: ‘‘Yes, sir.’’6 Relatedly, in his closing argument,

the prosecutor paraphrased the defendant’s

denial that he had told the police that he was trying to

buy marijuana on the night of the altercation as, ‘‘I never

said that; the police are lying apparently.’’7 Because the

jury found the defendant not guilty of the drug charge,

however, those two improprieties could not have prejudiced

the defendant unduly with respect to that charge.

Cf. State v. Ciullo, 314 Conn. 28, 60, 100 A.3d 779 (2014)

(‘‘[e]ven if all of the statements had affected a determination

of credibility, the defendant was acquitted of

some of the charges against him, clearly demonstrating

the jurors’ ability to filter out the allegedly improper

statements and make independent assessments of credibility’’).

Nor can we conclude that those improprieties prejudiced

the defendant with respect to the assault charge

because it is undisputed that no police officer provided

material testimony with respect to that charge. See

State v. Spencer, supra, 275 Conn. 182 (reviewing court

must consider prejudicial impact of impropriety on each

individual charge). As we previously noted, by the time

the police arrived at the scene of the altercation, the

fight between the defendant and Harris had already

ended. The officers’ testimony regarding the altercation,

therefore, was limited to repeating what the defendant

had told them when they arrived, namely, that he had

just been robbed by a man on a bicycle who had asked

him to make change for a $50 bill. In considering the

evidence related to the assault charge, therefore, the

jury never was required to reconcile the defendant’s

testimony with the contradictory testimony of any

police officer, a paramount concern under Singh.8

Indeed, if anything, we believe that the officers’ testimony

would have bolstered the defendant’s testimony

by demonstrating that the defendant’s account of the

altercation remained consistent over time.9

For this reason, we also conclude that the third Singh

violation, which ostensibly did pit the defendant’s testimony

against that of the police officers with respect to

the assault charge, did not prejudice the defendant.

During cross-examination, the prosecutor asked the

defendant whether ‘‘all of the police officers’ testimony

[contradicting everything about the larceny] is a lie?’’10

The prosecutor apparently was referring to the defendant’s

testimony that the altercation began when Harris

stole $40 from him. The defendant responded, ‘‘I didn’t

say that. What part of their testimony?’’ The defendant

was understandably confused by the prosecutor’s question

because, as we have explained, the officers’ testimony

about the assault and the alleged larceny did

not in any way conflict with that of the defendant’s

testimony, a fact that could not have been lost on the

jury. In light of the foregoing, we cannot discern how

the prosecutor’s question, improper though it may have

been, prejudiced the defendant with respect to the

assault charge.11

Indeed, the principal reason why a prosecutor may

not ask a defendant about the truthfulness of an officer’s

contradictory testimony is to reduce the risk that the

jury will resolve material conflicts between the testimony

of the defendant and the officer in favor of the

state, out of a concern that to do otherwise would

reflect adversely on the honesty of the officer. See, e.g.,

State v. Singh, supra, 259 Conn. 708–709. It is axiomatic,

however, that, when, as in the present case, the jury is

not required to resolve any such conflict, the harm that

might otherwise ensue from such a question will be

significantly reduced if not completely avoided. Furthermore,

this court has never had a case in which a

Singh violation, standing alone, was deemed sufficiently

egregious to entitle the defendant to a new trial.

Rather, in every case in which a defendant has claimed

that the prosecutor improperly asked him to characterize

another witness’ testimony as a lie, mistaken or

wrong, including Singh itself, it was the cumulative

effect of the Singh violation and the other prosecutorial

improprieties that ultimately was deemed to entitle the

defendant to a new trial.12 See, e.g., State v. Ceballos,

supra, 266 Conn. 390–93 (prosecutor’s repeated reference

to religion and possible divine consequences that

awaited defendant as result of his actions was inflammatory

and improperly invaded province of jury); State

v. Singh, supra, 710–18 (prosecutor improperly conveyed

his personal views regarding evidence, referred

to facts not in evidence, and argued that, to find defendant

not guilty, jury must find that five government

witnesses had lied).

We turn, therefore, to the final impropriety, which,

as the state acknowledges, was potentially prejudicial

to the defendant because it compelled him to comment

on Harris’ veracity. As we previously indicated, immediately

before the prosecutor questioned the defendant

as to whether the officers had lied about the robbery,

he also asked him: ‘‘Now, all this testimony from . . .

Harris then about the bus stop; that was a lie?’’ The

prosecutor apparently was referring to Harris’ testimony

that, approximately one hour before the altercation,

as he was coming home from work, the defendant

had approached him in front of the bus station and

displayed a knife. The defendant denied ever having

been near the bus station on the night in question and

called Harris’ testimony to the contrary a lie. He maintained,

rather, that the first time he saw Harris was on

Spring Street, when Harris approached him and asked

to buy drugs. We agree with the state that, under the

circumstances of this case, which required the jury to

decide whether the defendant or Harris was telling the

truth, questioning the defendant directly about whether

Harris had lied during his testimony was necessarily

harmless.

In reaching our determination, we acknowledge that

the state’s case against the defendant was not particularly

strong insofar as it turned entirely on Harris’ testimony.

13 We also recognize that the risk that a defendant

will be prejudiced by a Singh violation may be especially

acute when the state’s case is founded on the

credibility of its witnesses. Cf. State v. Alexander, 254

Conn. 290, 305, 755 A.2d 868 (2000) (prosecutorial

vouching ‘‘is especially significant . . . [when] the

credibility of the victim and the defendant comprise[s]

the principal issue of the case’’). As the present case

demonstrates, however, that general proposition is not

a universal truth. In a case that pits the testimony of

the defendant against that of the victim, such that the

victim’s version of events is directly at odds with the

defendant’s account of the facts, and there is no way to

reconcile their conflicting testimony except to conclude

that one of them is lying, it is unlikely that asking the

defendant directly whether the victim is lying ever could

be so prejudicial as to amount to a denial of due process.

Cf. State v. Fauci, 282 Conn. 23, 39, 917 A.2d 978 (2007)

(‘‘in a case that essentially reduces to which of two

conflicting stories is true, it may be reasonable to infer,

and thus to argue, that one of the two sides is lying’’

[internal quotation marks omitted]). To be sure, as we

explained in State v. Singh, supra, 259 Conn. 707–10,

such questioning is never appropriate, and we consistently

have declined the state’s invitation to carve out

an exception to the prohibition against ‘‘are they lying’’

questions in cases involving pure credibility contests.

We have done so, however, not because we disagreed

with the underlying rationale for such an exception but,

rather, because of the difficulty of determining, in the

midst of trial, whether the case presents a pure credibility

contest or whether the testimonial discrepancies

between the two witnesses may be explained by reasons

other than perjury or deceit. See, e.g., State v. Ciullo,

supra, 314 Conn. 46 n.14 (‘‘[a] determination of a ‘pure

credibility case’ is an inquiry that may be answered

differently depending on the point of view of the inquiring

party’’); State v. Singh, supra, 711 (‘‘[i]t would be

unwise . . . to make the application of this exception

predicated on such a difficult distinction, which is relegated

properly to the jury’’).

Our refusal to adopt the exception advanced by the

defendant, however, does not preclude us from

acknowledging the logic that underlies that proposed

exception in determining whether the defendant was

prejudiced by the prosecutor’s questioning, an inquiry

that, under Williams and its progeny, is separate and

distinct from the issue of whether the questioning was

improper in the first place. Indeed, because Williams

requires that we determine whether the prosecutorial

impropriety prejudiced the defendant by evaluating the

impropriety in the context of the entire trial, we must

consider whether it was possible for the jury to reconcile

the testimony of the defendant and Harris without

concluding that one of them was lying. When, as in the

present case, it is not possible to do so, there is no

reasonable possibility that asking the defendant

whether the victim testified truthfully would render the

trial so unfair as to rise to the level of a due process

violation because, in such circumstances, the risks that

ordinarily attend such a question simply are not present.

For example, asking the defendant in the present case

whether Harris was lying could not have led the jurors

to overlook the various, possible, innocent reasons for

discrediting Harris’ testimony because the evidence and

the parties’ arguments did not allow for any such reasons.

Moreover, there was no likelihood that the question

invaded the province of the jury or reduced or

distorted the state’s burden of proof because, in order to

decide the case, the jury itself was required to determine

which of the two witnesses, Harris or the defendant,

was lying. Thus, the answer that the defendant gave in

response to the prosecutor’s improper ‘‘is he lying’’

question, although irrelevant, could not have caused

the defendant undue harm.14

Of course, we do not condone questioning in violation

of Singh, even when, in light of the facts, the jury necessarily

must determine whether the defendant or another

witness is lying. In addition, as we previously noted;

see footnote 12 of this opinion; Singh violations may

be so serious, either standing alone or in combination

with other improprieties, as to require a new trial. For

the reasons that we previously discussed, however, the

violations in the present case did not so taint the defendant’s

trial as to render it fundamentally unfair. We

therefore conclude that the Appellate Court incorrectly

determined that the improprieties deprived the defendant

of his right to due process.15

II

DEFENDANT’S APPEAL

A

Instructions on Initial Aggressor

Exception to Self-Defense

We next address the defendant’s claim that the Appellate

Court’s judgment may be affirmed on the alternative

ground that the trial court improperly instructed the

jury on the initial aggressor exception to self-defense.16

According to the defendant, the trial court’s instruction

misled the jury by failing to clarify that the jury could

not find that the defendant was the initial aggressor on

the basis of words alone, and by suggesting that the jury

could find that the defendant was the initial aggressor

if it found that Harris subjectively believed that the

defendant intended to use physical force against him,

even if that belief was not reasonable. We agree with

the state that there is no reasonable possibility that the

jury was misled by the challenged instructions.17

The following additional facts and procedural history

are relevant to this claim. The defendant timely filed a

request to charge that included instructions on selfdefense

and the initial aggressor exception but not on

the definition of initial aggressor. The state requested

that the trial court instruct the jury on the initial aggressor

exception consistent with the model instruction

available on the Judicial Branch website.18 During the

trial court’s final charge to the jury, after explaining

general principles governing the use of force in selfdefense,

the court gave an instruction on the initial

aggressor exception that was identical to the model

instruction in all relevant respects. In relevant part, the

trial court instructed the jury: ‘‘[T]he state can prove

that the defendant was not justified in using physical

force in self-defense by proving beyond a reasonable

doubt that he was the initial aggressor in this encounter

with . . . Harris and that he neither withdrew from

that encounter nor effectively communicated his intent

to do so before using physical force against . . . Harris.

To . . . prove that the defendant was the initial

aggressor in this encounter with . . . Harris, the state

need not prove that the defendant was the first person

to use physical force in that encounter. The initial

aggressor can be the first person who threatened to

use physical force or even the first person who appeared

to threaten the imminent use of physical force under

[the] circumstances. . . . The defendant has no burden

whatsoever to prove that he was not the initial aggressor

or that he withdrew from the encounter and communicated

his intent to do so before he used physical force

against . . . Harris. To the contrary, you may only

reject his defense on the basis of the statutory disqualification

if you find that the state has proved beyond a

reasonable doubt that he was the initial aggressor, did

not withdraw from the encounter, and did not communicate

his intent to withdraw before using physical force.’’

On appeal, the defendant claims that the trial court’s

instruction that ‘‘[t]he initial aggressor can be . . . the

first person who appeared to threaten the imminent

use of physical force’’ did not clarify that the jury could

not find that the defendant was the initial aggressor on

the basis of words alone. The defendant contends that

the jury may have found that he was the initial aggressor

on the basis of mere words because there was evidence

that the defendant verbally threatened Harris on two

occasions prior to the altercation that led to the assault

charge. First, there was testimony from several witnesses

that, when Harris ordered the defendant to leave

his property several weeks before the altercation, the

defendant looked at Harris and said ‘‘I’ll get you.’’ Second,

when the defendant saw Harris on Kennedy Avenue

prior to the assault, he displayed a knife and said,

‘‘[w]hat’s up, Old School?’’ According to the defendant,

the trial court’s failure to expressly instruct the jury

that it could not find that he was the initial aggressor

solely on the basis of a verbal threat allowed the jury

to credit his version of the events surrounding the altercation

in its entirety, but the jury nevertheless found

him guilty of the assault because it determined that he

was the initial aggressor on the basis of these earlier

verbal threats. In a similar vein, the defendant also

contends that the trial court’s instruction failed to convey

to the jury that it could find that he was the initial

aggressor only if Harris had a reasonable belief that

the defendant was about to use physical force. The

defendant maintains that the jury may have rejected

his self-defense claim on the ground that, due to the

previous encounters in which the defendant had threatened

Harris, Harris subjectively believed that the defendant

intended to attack him, even if that belief was not

a reasonable one.

Before discussing the merits of the defendant’s

claims, we briefly set forth the legal principles that

govern our review. ‘‘A fundamental element of due process

is the right of a defendant charged with a crime

to establish a defense. . . . This fundamental constitutional

right includes proper jury instructions on the

elements of self-defense so that the jury may ascertain

whether the state has met its burden of proving beyond

a reasonable doubt that the assault was not justified.’’

(Citations omitted; internal quotation marks omitted.)

State v. Jimenez, 228 Conn. 335, 339, 636 A.2d 782

(1994). Thus, ‘‘[a]n improper instruction on a defense,

like an improper instruction on an element of an

offense, is of constitutional dimension.’’ (Internal quotation

marks omitted.) State v. Singleton, 292 Conn. 734,

745, 974 A.2d 679 (2009). ‘‘It is well established that a

defect in a jury charge which raises a constitutional

question is reversible error if it is reasonably possible

that, considering the charge as a whole, the jury was

misled.’’ (Internal quotation marks omitted.) State v.

Fields, 302 Conn. 236, 245, 24 A.3d 1243 (2011). In evaluating

a claim of instructional impropriety, however, ‘‘we

must view the court’s jury instructions as a whole, without

focusing unduly on one isolated aspect of the

charge. . . . In determining whether a jury instruction

is improper, the charge . . . is not to be critically dissected

for the purpose of discovering possible inaccuracies

of statement, but it is to be considered rather as

to its probable effect [on] the jury in guiding [it] to a

correct verdict in the case.’’ (Citation omitted; internal

quotation marks omitted.) State v. Carrion, 313 Conn.

823, 845, 100 A.3d 361 (2014). Finally, because a challenge

to the validity of a jury instruction presents a

question of law, we exercise plenary review. E.g., State

v. Singleton, supra, 746.

General Statutes § 53a-19 (c) provides in relevant part

that ‘‘a person is not justified in using physical force

when . . . (2) he is the initial aggressor, except that

his use of physical force upon another person under

such circumstances is justifiable if he withdraws from

the encounter and effectively communicates to such

other person his intent to do so, but such other person

notwithstanding continues or threatens the use of physical

force . . . .’’ Although the term ‘‘initial aggressor’’

is not defined by statute, in State v. Jimenez, supra,

228 Conn. 335, we stated that ‘‘[i]t is not the law . . .

that the person who first uses physical force is necessarily

the initial aggressor under § 53a-19 (c) (2).’’ Id., 340.

Rather, ‘‘§ 53a-19 contemplates that a person may

respond with physical force to a reasonably perceived

threat of physical force without becoming the initial

aggressor and forfeiting the defense of self-defense.

Otherwise, in order to avoid being labeled the aggressor,

a person would have to stand by meekly and wait until

an assailant struck the first blow before responding.’’

Id., 341. Thus, we have approved of instructions defining

initial aggressor as ‘‘the person who first acts in such

a manner that creates a reasonable belief in another

person’s mind that physical force is about to be used

[on] that other person . . . .’’ (Internal quotation marks

omitted.) State v. Singleton, supra, 292 Conn. 763.

With respect to the nature of the conduct required

to create a reasonably perceived threat of physical

force, we previously have indicated that the mere use

of offensive words, without more, is insufficient to qualify

a defendant as the initial aggressor. See, e.g., State

v. Whitford, 260 Conn. 610, 621, 799 A.2d 1034 (2002)

(‘‘the discussion of a subject as to which animus existed

between the parties . . . does not by itself make . . .

[one] the aggressor’’ [internal quotation marks omitted]),

quoting State v. Corchado, 188 Conn. 653, 667

n.15, 453 A.2d 427 (1982). This is consistent with the

well established principle that the use of physical force

in defense of oneself is justified only if the person claiming

self-defense honestly and reasonably believes that

an attack is imminent. See, e.g., State v. Lewis, 220

Conn. 602, 620, 600 A.2d 1330 (1991) (‘‘[t]he defense of

self-defense does not encompass a preemptive strike’’);

State v. Peters, 40 Conn. App. 805, 814–15, 673 A.2d

1158 (‘‘the defendant must entertain an honest belief

that the other person is using or is about to use physical

force, and the defendant’s decision to use defensive

force must be based on this sincere belief as opposed

to anger, malice or revenge’’), cert. denied, 237 Conn.

925, 677 A.2d 949 (1996).

For several reasons, we are not persuaded that there

is any reasonable possibility that the trial court’s

instruction on the initial aggressor exception misled

the jury to the detriment of the defendant’s self-defense

claim. First, as we recently explained in addressing the

identical contention in State v. Revels, 313 Conn. 762,

785, 99 A.3d 1130 (2014), when assessing whether an

instruction adequately conveyed to the jury the principles

governing the initial aggressor exception, we must

look to the entirety of the court’s self-defense instruction.

In Revels, we observed that, ‘‘[a]t other points in

the court’s instructions relating to self-defense, the

court properly and thoroughly explained that in order

for a defendant to claim that he has acted in selfdefense,

the defendant’s belief that the other actor is

about to use physical force must be a reasonable one.’’

Id. We further explained that ‘‘[t]he court’s definition

of ‘initial aggressor’ must be understood therefore to

incorporate the notion that only actions that reasonably

appear to threaten the imminent use of physical force

will make the defendant an initial aggressor.’’19 (Emphasis

in original.) Id. In the present case, the trial court

repeatedly explained the principle that one cannot use

physical force against another unless his subjective

belief that that person is about to use physical force

against him was reasonable under the circumstances.

In addition, the trial court, in instructing the jury that

the determination of whether the defendant acted in

self-defense did not require that Harris actually

intended to use physical force, but only that the defendant

perceived that Harris was about to use physical

force, again explained that the defendant’s perception

regarding the threat of force must have been reasonable.

In view of the fact that the trial court thoroughly

instructed the jury regarding the subjective-objective

inquiry with respect to the use of force in self-defense,

the court’s instruction that the initial aggressor may be

‘‘the first person who appeared to threaten the imminent

use of physical force’’ must be understood to have incorporated

the reasonableness requirement.

Moreover, contrary to the defendant’s contention, the

jury could not have credited his testimony regarding

the altercation and still have found him guilty of the

assault. As the state observes, the trial court instructed

the jury that it should consider self-defense only if it

first determined that the state had ‘‘prove[n] beyond a

reasonable doubt each element of [the] crime . . . . If

you find that the . . . state has been able to prove

beyond a reasonable doubt each and every element

necessary, you then move onto the issue of selfdefense.’’

With respect to the elements of assault in the

second degree; see General Statutes § 53a-60 (a) (2);

the trial court instructed the jury that, in order to find

the defendant guilty of that crime, it had to find that

he ‘‘had the specific intent to cause physical injury to

. . . Harris, [that he] did cause physical injury to . . .

Harris, and [that he] caused the injury by means of

a dangerous instrument . . . .’’ Thus, before the jury

considered whether the state proved that the defendant

had not acted in self-defense, it first must have found

that he intentionally caused physical injury to Harris

with the knife.

Only Harris’ testimony, however, provided the jury

with an account by which it reasonably could have

found that the defendant intentionally caused physical

injury to Harris. As we previously indicated, Harris testified

that, when he saw the defendant on Beaver Street,

he got off his bicycle and approached him to ask ‘‘what

the problem was.’’ Harris further testified that the defendant

immediately started swinging the knife ‘‘like a wild

man’’ and that, as he ran away, the defendant pursued

him and cut him across the lower back.20 Finally, Harris

testified that he knocked the defendant down by riding

his bicycle into him and that the defendant continued

to slash at him with the knife until Harris was able to

subdue him.

The defendant, in stark contrast, testified that he did

not intentionally cut or stab Harris with the knife. He

explained, rather, that, after Harris knocked him down

with the bicycle, the defendant removed the knife from

his pocket only to discourage Harris from attacking him,

and that he must have accidentally cut Harris during the

ensuing scuffle. This testimony, therefore, would not

have supported a finding that the defendant intentionally

caused physical injury to Harris, as required under

§ 53a-60 (a) (2). Thus, if the jury had credited the defendant’s

testimony, it could not have found that he was

the initial aggressor because the jury would not have

reached his self-defense claim in the first instance.

Finally, because Harris’ testimony provided the only

factual basis for the jury’s verdict, we must presume

that the jury credited that testimony with respect to the

assault.21 In view of Harris’ testimony that the defendant

intentionally assaulted him after chasing him and swinging

the knife in his direction almost immediately after

they encountered each other on Beaver Street, there is

no reasonable possibility that the defendant was prejudiced

by the fact that the jury was not instructed that

words alone cannot support an initial aggressor finding.

Finally, nothing in the state’s closing argument suggested

to the jury that it could find that the defendant

was the initial aggressor on the basis of his previous

verbal threats, and, in fact, neither party referred to

the initial aggressor principle at any time during their

respective closing arguments. See State v. Singleton,

supra, 292 Conn. 763–64 (court did not improperly fail

to instruct jury that person cannot be initial aggressor

on basis of words alone when neither state nor defendant

indicated during closing argument that it could

find defendant was initial aggressor on that basis). In

addressing the jury during his initial closing argument,

the prosecutor attempted to counter the defendant’s

testimony that he accidentally cut Harris during the

scuffle. The prosecutor referred to the previous incident

at Harrison’s property several weeks prior to the assault

and argued that ‘‘[t]his wasn’t somebody who made a

mistake. [The defendant] wanted to hurt . . . Harris’’

because he was angry about their previous encounter.

The prosecutor then argued that the defendant’s claim

that he accidentally cut Harris during the struggle did

not make sense, noting that the defendant’s testimony

suggested that ‘‘[t]he cut on [Harris’] back [occurred]

somehow while . . . Harris is holding [the defendant’s]

hands’’ and that ‘‘[t]he cut across the chest is,

apparently, self-inflicted by . . . Harris holding [the

defendant’s] hands and, apparently, ripping the knife

clean across him with [the defendant] holding the knife.

. . . You’re not [going to] do that to yourself; you can’t

do that to yourself. There had to be some force behind

that, such as a swing and a slash, not [an] impalement

as [the defendant] would like to describe it.’’

For his part, defense counsel argued to the jury that

the defendant displayed the knife in an effort to ward

off Harris’ attack because the defendant ‘‘felt . . . that

he was being overpowered’’ and that he accidentally

cut Harris during the struggle. Defense counsel argued

that, after the defendant displayed the knife, Harris

‘‘lunge[d] at [the defendant] and [grabbed the defendant]

by both hands . . . so [the defendant did] not

have any control over his own hands.’’ Counsel maintained

that the evidence regarding Harris’ injuries, as

well as Harris’ lack of defensive wounds, supported the

defendant’s claim that he cut Harris accidentally during

the struggle, explaining that ‘‘[i]t’s all very plausible

how these injuries have occurred. Harris [did not] know

. . . that he was hit; [the defendant did not] know that

he cut him.’’ In rebuttal closing argument, the prosecutor

did not assert that the defendant was the initial

aggressor because he previously had threatened Harris.

Rather, the prosecutor focused exclusively on the physical

altercation in attempting to rebut the defendant’s

testimony that he was too intoxicated to flee or to

defend himself without the knife.

Thus, although the defendant is correct in the

abstract that, as a matter of law, the jury could not

have determined that he was the initial aggressor solely

on the basis of his utterance of certain words or solely

on the basis of Harris’ subjective fear that the defendant

was intent on attacking him, we previously have recognized

that ‘‘[t]he mere fact that the defendant properly

cites to a proposition of law related to the claim of

self-defense . . . does not entitle him to an instruction

thereon.’’ State v. Whitford, supra, 260 Conn. 621–22.

Rather, ‘‘[a]s long as [the instructions] are correct in

law, adapted to the issues and sufficient for the guidance

of the jury . . . we will not view the instructions

as improper.’’ (Internal quotation marks omitted.) State

v. Baltas, 311 Conn. 786, 809, 91 A.3d 384 (2014). In the

present case, it is apparent that the jury rejected the

only testimony from which it reasonably could have

found that the defendant was the initial aggressor predicated

solely on his previous verbal threats or on Harris’

subjective but unreasonable belief that the defendant

intended to use physical force against him as evidenced

by those threats. Rather, as we discussed previously,

Harris’ testimony regarding the assault—which is the

only version of the incident that supports the jury’s

verdict on that charge—establishes that the defendant

charged at Harris while the defendant was swinging

the knife in Harris’ direction almost as soon as Harris

approached the defendant on Beaver Street. In such

circumstances, where the jury credited Harris’ testimony

characterizing the defendant’s attack against him

as wholly unprovoked, there is no reasonable possibility

that the jury found that the defendant was the initial

aggressor on the basis of the verbal threats he made

during their previous encounters. Accordingly, there

also is no reasonable possibility that the jury was misled

by the challenged instruction.

B

Motion to Suppress

The defendant next challenges the Appellate Court’s

conclusion that the trial court properly denied his

motion to suppress evidence of the knife that he used

during the assault. The defendant claims that the seizure

of the knife violated the fourth amendment to the United

States constitution.22 We are not persuaded.

The following facts and procedural history are relevant

to this claim. At the hearing on the defendant’s

motion to suppress, Officer Reo testified that he and

Officer Williams responded to reports of criminal activity

in the area of Beaver Street and Rose Street in

Danbury at approximately 7:30 p.m. on the night in

question. Upon arriving at the scene, the officers

encountered the defendant in the street, and the defendant

reported, inter alia, that another man had taken

money from him. The defendant also provided a

description of the alleged perpetrator. The officers canvassed

the area and detained several potential suspects,

but the defendant did not identify any of them as the

perpetrator. The defendant then asked the officers for

a ride home, and Reo accommodated the defendant’s

request because, at that point in time, he considered

the defendant to be a victim, and he did not want the

defendant, who appeared to be intoxicated, to walk

home. Reo informed the defendant that, in accordance

with Danbury Police Department procedure, he would

have to be patted down before entering the police car

to ensure that he did not have any weapons on him.

The defendant then informed Reo that he had a knife

in his pocket, and he voluntarily handed it to Reo, who

placed it in the glove compartment of his police car.

Reo testified that, when they arrived at the defendant’s

home, he was uncomfortable giving the knife back to

the defendant due to the fact that he was intoxicated.

Reo therefore told the defendant that he would hold

the knife for safekeeping and that the defendant could

retrieve it at police headquarters when he was sober.

Shortly after dropping the defendant off at his home,

Reo heard a broadcast over the police radio system

indicating that the defendant had been involved in an

assault in the area of Beaver Street and Rose Street,

and that a knife had been used in the assault. Reo, along

with several other officers, returned to the defendant’s

home and took him into custody. At that point, Reo

considered the knife to be evidence of the assault and,

upon returning to headquarters, processed the knife as

evidence. Reo testified that, according to police

records, the knife was logged into evidence at 11:20

p.m. that evening.

Prior to trial, the defendant filed a motion to suppress

the knife as the product of an unreasonable, and therefore

unconstitutional, seizure. The defense conceded

that Reo properly seized the knife before allowing him

to enter the police cruiser and that Reo properly

retained the knife for safekeeping when he dropped the

defendant off at his home. The defense maintained,

however, that, once the police considered the knife to

be evidence of the assault, they were required to obtain

a warrant before retaining the knife as evidence, and

that the failure to do so rendered the seizure unreasonable.

The trial court denied the motion to suppress,

concluding that Reo properly seized the knife before

allowing the defendant into the police cruiser because

‘‘the police had an interest in protecting their wellbeing’’

while giving the defendant a ride home, the

defendant consented to the seizure by voluntarily handing

the knife over, and ‘‘the scope of that consent was

not abused or exceeded . . . .’’ On appeal following

the defendant’s conviction, the Appellate Court rejected

the defendant’s claim of a constitutional violation, concluding

that ‘‘[t]he [trial] court found that the defendant

consented and handed the knife over voluntarily, and

that the police did not exceed the scope of that consent,’’

and, further, that ‘‘[t]he record supports this finding,

which is not clearly erroneous.’’ State v. Jones,

supra, 139 Conn. App. 486.

On appeal to this court, the defendant challenges

the Appellate Court’s determination that the trial court

properly denied his motion to suppress on the ground

that he consented to the continued retention of the

knife by the police. Specifically, the defendant contends

that the safekeeping rationale for maintaining temporary

possession of the knife did not justify its continued,

warrantless retention by the police for use as evidence

against him in his criminal case. According to the defendant,

the initial justification for the seizure expired

when the police decided to retain the knife for an investigatory

or evidentiary purpose, and, because no exception

to the warrant requirement is applicable under the

facts presented, the retention of the knife as evidence

constituted an unreasonable seizure in violation of the

fourth amendment, thereby requiring its suppression.

The state argues that the seizure was reasonable

because the knife was lawfully in the possession of

the police at the time they obtained probable cause to

believe that it was used in the assault. Although we

agree with the defendant that the initial temporary seizure

of the knife for safety reasons did not alone justify

its further retention for evidentiary purposes, we also

conclude that such retention was reasonable because

the police had probable cause to believe that the defendant

used the knife in the commission of the assault.

The following well settled legal principles govern our

review of the defendant’s claim. ‘‘[T]he standard of

review for a motion to suppress is well settled. A finding

of fact will not be disturbed unless it is clearly erroneous

in view of the evidence and pleadings in the whole

record . . . . [W]hen a question of fact is essential to

the outcome of a particular legal determination that

implicates a defendant’s constitutional rights, [however]

. . . our customary deference to the trial court’s

factual findings is tempered by a scrupulous examination

of the record to ascertain that the trial court’s

factual findings are supported by substantial evidence.

. . . [When] the legal conclusions of the court are challenged,

[our review is plenary, and] we must determine

whether they are legally and logically correct and

whether they find support in the facts [found by the

trial court] . . . .’’ (Internal quotation marks omitted.)

State v. Jackson, 304 Conn. 383, 394, 40 A.3d 290 (2012).

‘‘The fourth amendment to the United States constitution,

made applicable to the states through the [due

process clause of the] fourteenth amendment, prohibits

unreasonable searches and seizures by government

agents.’’ State v. Eady, 249 Conn. 431, 436, 733 A.2d

112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L.

Ed. 2d 428 (1999). ‘‘A seizure of property occurs when

there is some meaningful interference with an individual’s

possessory interests in that property. . . . If a seizure

has occurred, then the court must engage in a

complex inquiry to determine whether that seizure was

reasonable. . . .

‘‘With regard to the reasonableness requirement, [i]n

the ordinary case, the [United States Supreme] Court

has viewed a seizure of personal property as per se

unreasonable within the meaning of the [f]ourth

[a]mendment unless it is accomplished pursuant to a

judicial warrant issued upon probable cause and particularly

describing the items to be seized. . . . The . . .

[c]ourt has nonetheless made it clear that there are

exceptions to the warrant requirement. When faced

with special law enforcement needs, diminished expectations

of privacy, minimal intrusions, or the like, the

[c]ourt has found that certain general, or individual,

circumstances may render a warrantless search or seizure

reasonable.’’ (Citations omitted; internal quotation

marks omitted.) Fleming v. Bridgeport, 284 Conn. 502,

520–21, 935 A.2d 126 (2007).

As we discussed previously, the defendant contends

that, although the initial temporary seizure of the knife

for safekeeping was reasonable, and therefore lawful,

the seizure became unreasonable for fourth amendment

purposes when the police thereafter retained the knife

as evidence of the assault without obtaining a warrant.

Although implicitly acknowledging that the defendant’s

consent did not extend beyond the next morning, at

which time the defendant presumably had become

sober,23 the state argues that the seizure was reasonable

because the police had probable cause to believe that

the knife was used in the assault. Thus, we must decide

whether the police, having lawfully seized personal

property without a warrant on a temporary basis for

a noninvestigatory purpose and having subsequently

developed, while the item was still in their possession,

probable cause to believe that it is evidence of a crime,

are required to obtain a warrant if they wish to retain

the item as evidence.

As the parties acknowledge, there is little case law

addressing the issue of whether it is reasonable for

police to extend a temporary, warrantless seizure of

personal property on the basis of a justification that

differs from that on which the initial seizure was

founded. In other contexts, however, the United States

Supreme Court has recognized ‘‘the rule that if, while

lawfully engaged in an activity in a particular place,

police officers perceive a suspicious object, they may

seize it immediately.’’ Texas v. Brown, 460 U.S. 730,

739, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (opinion

announcing judgment). As the state observes, one context

in which this general rule applies is the plain view

exception to the warrant requirement, which recognizes

that, ‘‘under certain circumstances the police may seize

evidence in plain view without a warrant.’’ Coolidge v.

New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 29

L. Ed. 2d 564 (1971) (plurality opinion). Under the plain

view exception, ‘‘[t]he warrantless seizure of contraband

that is in plain view is reasonable under the fourth

amendment if two requirements are met: (1) the initial

intrusion that enabled the police to view the items

seized must have been lawful; and (2) the police must

have had probable cause to believe that these items

were contraband or stolen goods.’’ (Internal quotation

marks omitted.) State v. Eady, supra, 249 Conn. 437.

Although the plain view exception generally arises

when the police inadvertently discover contraband during

the course of a lawful search, the United States

Supreme Court has indicated that the nature of the

activity that leads to the discovery of the item is constitutionally

insignificant, as long as the police involvement

in that activity itself satisfies the requirements

of the fourth amendment. Thus, ‘‘plain view provides

grounds for seizure of an item when an officer’s access

to an object has some prior justification under the

[f]ourth [a]mendment. Plain view is perhaps better

understood, therefore, not as an independent exception

to the [w]arrant [c]lause, but simply as an extension of

whatever the prior justification for an officer’s access

to an object may be.’’ (Emphasis added; footnote omitted;

internal quotation marks omitted.) Texas v. Brown,

supra, 460 U.S. 738–39 (opinion announcing judgment).

‘‘The principle is grounded on the recognition that when

a police officer has observed an object in plain view,

the owner’s remaining interests in the object are merely

those of possession and ownership . . . .’’ (Citation

omitted; internal quotation marks omitted.) Id., 739

(opinion announcing judgment). In other words, if

police have lawful access to an item that they reasonably

believe constitutes evidence of criminal activity,

and, in light of the circumstances presented, the defendant

has no reasonable expectation of privacy in the

item, the police may seize it without obtaining a warrant.

See, e.g., United States v. Jacobsen, 466 U.S. 109,

121–22, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (‘‘it is

constitutionally reasonable for law enforcement officials

to seize ‘effects’ that cannot support a justifiable

expectation of privacy without a warrant’’).

Relying on this principle, courts have concluded that

the warrantless seizure of personal property founded

on probable cause was reasonable in a variety of circumstances

in which the police had lawful access to

the property in question. For example, ‘‘it is . . . well

settled that objects such as weapons or contraband

found in a public place may be seized by the police

without a warrant. The seizure of property in plain view

involves no invasion of privacy and is presumptively

reasonable, assuming that there is probable cause to

associate the property with criminal activity.’’ Payton

v. New York, 445 U.S. 573, 586–87, 100 S. Ct. 1371, 63 L.

Ed. 2d 639 (1980). Courts also have upheld warrantless

seizures predicated on probable cause when evidence

is observed during the course of a routine traffic stop;

see, e.g., Texas v. Brown, supra, 460 U.S. 739–44 (opinion

announcing judgment) (warrantless seizure of balloon

containing heroin during routine driver’s license

check was deemed to be lawful because officer had

probable cause to believe balloon contained narcotics);

United States v. Spoerke, 568 F.3d 1236, 1249 (11th

Cir. 2009) (warrantless seizure of homemade explosive

devices from car during traffic stop was lawful because

devices were in plain view); when government agents

inspect the contents of a package following a search by

employees of a private common carrier; United States

v. Jacobsen, supra, 466 U.S. 120–22 (warrant was not

necessary to seize contents of package searched by

employees of private common carrier because federal

agents had probable cause to believe package contained

narcotics); and when a law enforcement officer engages

in legitimate questioning during a Terry24 stop. See, e.g.,

United States v. Jones, 187 F.3d 210, 219–21 (1st Cir.

1999) (warrantless seizure of counterfeit currency discovered

during Terry stop after suspect removed it

from pocket was justified because seizure was based

on probable cause).

Contrary to the defendant’s contention, this principle

is no less applicable when the initial intrusion pursuant

to which the police gained access to the contraband in

question is not investigatory in nature. For example,

this court previously has concluded that ‘‘evidence of

crimes . . . when observed in plain view by fire officials

who are lawfully present on the premises, also

may be seized without a warrant.’’ State v. Eady, supra,

249 Conn. 438; see also United States v. Green, 474

F.2d 1385, 1389–90 (5th Cir.), cert. denied, 414 U.S. 829,

94 S. Ct. 55, 38 L. Ed. 2d 63 (1973). Similarly, police

may seize contraband that they observe while acting

pursuant to their community caretaking function or

while rendering aid to a person in distress. See, e.g.,

United States v. Johnson, 410 F.3d 137, 141–42, 144–45

(4th Cir.) (seizure of gun was upheld when officer acting

pursuant to community caretaking function found gun

while searching glove compartment for identification

after finding defendant unresponsive in vehicle), cert.

denied, 546 U.S. 952, 126 S. Ct. 461, 163 L. Ed. 2d 250

(2005); State v. Kuskowski, 200 Conn. 82, 84–85, 510

A.2d 172 (1986) (police officer properly seized narcotics

in plain view after observing them while assisting defendant

who was passed out in vehicle with propane torch

burning in his lap).

In State v. Lane, 328 N.C. 598, 403 S.E.2d 267, cert.

denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 261

(1991), the Supreme Court of North Carolina applied

this principle in a factual context similar to the present

case. In Lane, the police responded to a report of a

suicide threat and found the defendant, Albert Lee Lane,

armed with a pistol. Id., 603. The police spoke with Lane,

who voluntarily gave the pistol and its ammunition to

the police. Id., 603, 611. While the police still had possession

of the pistol, they obtained probable cause to

believe that Lane was involved in a murder and that

the pistol was the murder weapon. See id., 611. Lane

sought to suppress the pistol and ammunition, contending

that, although he consented to the initial seizure

when the police responded to the report of a suicide

threat, the seizure became unreasonable when the

police retained the pistol and ammunition as evidence

of the murder. See id., 610–11. On appeal, the Supreme

Court of North Carolina upheld the trial court’s decision

not to suppress the pistol and ammunition, concluding

that, ‘‘since the pistol and ammunition were already

lawfully in the possession of the police officer, he was

not required to return [them] to the owner [because

there was] probable cause to retain [them].’’ Id., 611;

see also 4 W. LaFave, Search and Seizure (5th Ed. 2012)

§ 8.1 (c), pp. 58–61 (‘‘a consent to a seizure can be

withdrawn by requesting return of the seized article,

which however need not be complied with if there is

then probable cause to retain it as evidence’’ [emphasis

added; footnote omitted]).

As the foregoing demonstrates, when police have lawful

access to an item for which they have probable

cause to believe is evidence of a crime, it is not unreasonable

for them to seize that item without a warrant,

and this principle applies equally when the police have

access to the item in question due to an antecedent

seizure rather than a search.25 As we discussed previously,

there is no dispute, for purposes of this appeal,

that Reo lawfully had the knife in his possession when

he heard the broadcast indicating that the defendant

was wanted in connection with the assault. The question,

then, is whether Reo had probable cause to justify

retaining the knife as evidence.26

‘‘Probable cause, broadly defined, [comprises] such

facts as would reasonably persuade an impartial and

reasonable mind not merely to suspect or conjecture,

but to believe that criminal activity has occurred. . . .

In other words, because [t]he probable cause determination

is, simply, an analysis of probabilities . . .

[p]robable cause requires only a probability or substantial

chance of criminal activity, not an actual showing

of such activity.’’ (Citations omitted; internal quotation

marks omitted.) State v. Shields, 308 Conn. 678, 690,

69 A.3d 293 (2013), cert. denied, U.S. , 134 S.

Ct. 1040, 188 L. Ed. 2d 123 (2014). On the basis of Reo’s

testimony at the hearing on the defendant’s motion to

suppress, it is evident that the facts were more than

sufficient to lead a reasonable person to believe that

the knife was evidence of a crime. When Reo responded

to the area of Beaver Street and Rose Street, he found

that the defendant was ‘‘irritated’’ and ‘‘appeared to be

intoxicated . . . .’’ The defendant eventually asked for

a ride home, at which time the defendant informed Reo

that he had a knife in his pocket, which he voluntarily

handed to Reo. After dropping the defendant off at his

home, Reo heard a broadcast over the police radio

system indicating that the defendant was wanted for

an assault with a knife in the area of Beaver Street and

Rose Street, the same location at which Reo originally

encountered the defendant. At that time, Reo had sufficient

information to believe that the knife was used in

the assault, and he was justified in retaining the knife

as evidence. Accordingly, the trial court properly denied

the defendant’s motion to suppress.

The judgment of the Appellate Court is reversed and

the case is remanded to that court with direction to

affirm the judgment of the trial court.

In this opinion ROGERS, C. J., and ZARELLA,

ESPINOSA and ROBINSON, Js., concurred.

1 The defendant apparently used a box cutter containing a razor blade.

In the interest of simplicity, we refer to the box cutter as a knife.

2 In Williams, we identified the following six factors that courts should

consider in determining whether prosecutorial impropriety deprived a defendant

of a fair trial: (1) the extent to which the impropriety was invited by

defense conduct or argument; (2) the severity of the impropriety; (3) the

frequency of the impropriety; (4) the centrality of the impropriety to the

critical issues in the case; (5) whether any curative measures were taken

by the trial court; and (6) the strength of the state’s case. State v. Williams,

supra, 204 Conn. 540.

3 We granted the state’s petition for certification to appeal, limited to

the following issue: ‘‘Did the Appellate Court properly determine that the

prosecutor’s improprieties during cross-examination and final argument violated

the defendant’s due process rights?’’ State v. Jones, 307 Conn. 957, 59

A.3d 1192 (2013).

We granted the defendant’s petition for certification to appeal, limited to

the following issue: ‘‘Did the Appellate Court properly affirm the trial court’s

denial of the defendant’s motion to suppress?’’ State v. Jones, 307 Conn.

958, 59 A.3d 1192 (2013).

After we granted the parties’ petitions for certification to appeal, the

defendant filed a preliminary statement of the issues pursuant to Practice

Book § 63-4 (a) (1), expressing his intention to present a claim, as an alternative

ground for affirmance, that the trial court improperly had instructed

the jury on the initial aggressor exception to self-defense.

4 The dissent asserts that the defendant has established that the improprieties

at issue in the present case violated his ‘‘right to testify and present a

defense,’’ in violation of the fifth, sixth and fourteenth amendments to the

United States constitution, and, as a consequence, the state bears the burden

of establishing that the improprieties were harmless beyond a reasonable

doubt. See, e.g., State v. Payne, 303 Conn. 538, 562–63, 34 A.3d 370 (2012)

(explaining that, when improper remarks by prosecutor implicate defendant’s

due process rights, defendant must prove that remarks were both

improper and harmful, but that, upon showing by defendant that prosecutor’s

improper remarks violate specifically enumerated constitutional right,

such as defendant’s right to remain silent or to present defense, burden

falls on state to establish harmlessness beyond reasonable doubt). In support

of this assertion, the dissent explains that the improprieties in the present

case so ‘‘weaken[ed]’’ the defendant’s credibility as to constitute an unconstitutional

‘‘impinge[ment]’’ on his right to testify in his own defense. The

dissent, however, cites no case law or other support for this conclusory

assertion, and, to our knowledge, no court ever has concluded that a violation

of Singh infringes impermissibly on an accused’s constitutional right to

testify. Because the sole issue we must decide is whether the improprieties

amounted to a deprivation of due process, the defendant bears the burden

of establishing that they were so serious as to render his trial fundamentally

unfair.

5 Specifically, the trial court instructed the jury at the commencement of

trial as follows: ‘‘Now, your function as the jury is to determine the facts.

You are the sole and exclusive judges of the facts, and you alone determine

the weight and effect, the value of the evidence, as well as the credibility

of the witnesses. You must weigh the testimony of all witnesses who appear

before you, and you alone are to determine whether to believe any witness

and the extent to which any witness should be believed.

* * *

‘‘Now, police officers will testify in this case. You must determine the

credibility of police officers in the same way as you would any other witness[

es], and testimony of a police officer is entitled to no special or exclusive

weight merely because it comes from a police official. You should recall

his or her demeanor on the stand, the manner of testifying, and weigh and

balance it just as carefully as you would the testimony of any other witness.

You should neither believe nor disbelieve the testimony of a police official

simply because he or she is, in fact, a police officer.’’

At the conclusion of the trial, the trial court reiterated the role of the jury

in assessing the credibility of police officers, stating: ‘‘You are entitled to

. . . accept any testimony which you believe to be true and to reject, either

wholly or in part, the testimony of any witness you believe has testified

untruthfully or erroneously. The credit that you will give to the testimony

offered is, as I have told you, something which you alone must determine.

* * *

‘‘As you will recall, there was testimony here from police officers. The

testimony of a police officer is entitled to no special [or] exclusive credibility

merely because it comes from a police officer. A police officer who takes

the witness stand subjects his testimony to the same tests that any other

witness does. You should not automatically believe or disbelieve them merely

because they are police officers. . . . You should weigh their testimony

just as you would that of any other witness[es].’’

6 The prosecutor cross-examined the defendant as follows:

‘‘Q. . . . [I]t’s your testimony that you didn’t have any marijuana?

‘‘A. No, sir, I did not have any marijuana.

‘‘Q. So, what Officer Georgoulis testified to today is all false?

‘‘A. Yes, sir.’’

7 During closing argument, the prosecutor stated as follows: ‘‘I ask you

to . . . look at the way these witnesses testified; think about whether or

not any of them have reasons to alter their testimony or falsely testify before

the court. The officers have nothing to gain. . . . Harris is not go[ing] [to]

gain anything. He’s not trying to avoid any kind of criminal charges; none

[was] ever filed because the police found there weren’t any to be charged

. . . . What we do have is [the defendant], who has every reason in the

world not to want to agree with . . . the correct factual scenario. . . . So,

he started concocting his version of the events, and his version became a

robbery where he’s the victim . . . .

‘‘[The defendant], before he was able to create this story, even told Officer

Reo, ‘I was in the area to buy marijuana.’ Ooh, now that’s a bad statement

when, two hours later, the police are arresting him, and, all of a sudden,

he’s got a bag of marijuana in his pocket. . . . Things are unraveling; one

story won’t work now. So, what’s the answer; the answer is, I never said

that; the police are lying apparently.

‘‘[The defendant] then has to explain, hmmm, how I’m gonna, you know,

how I’m gonna say I couldn’t just turn around and run away from . . .

Harris, who was coming after me.’’

8 We note that the dissent, in reaching a contrary determination, adopts

the conclusion of the Appellate Court that three of the four Singh violations

were especially harmful because, in those instances, ‘‘the defendant was

compelled to comment directly on the veracity of police witnesses’’; State

v. Jones, supra, 139 Conn. App. 478; and ‘‘[the] risk [that Singh violations

pose] is especially acute when the witness is a government agent in a criminal

case. . . . Indeed, Connecticut courts routinely instruct juries that they

should evaluate the credibility of a police officer in the same way that they

evaluate the testimony of any other witness . . . no doubt to check the

heightened credibility that government agents are afforded by some jurors.’’

(Citation omitted; internal quotation marks omitted.) Id. As the state maintains,

however, the Appellate Court failed to distinguish between the assault

and the drug charges and, as a result, failed to consider what, if any, prejudicial

effect the improprieties relating to the drug charge had on the assault

charge, as it was required to do in assessing harmfulness. Indeed, neither

the Appellate Court nor the dissent offers an explanation as to why Singh’s

concern regarding the heightened credibility that jurors may afford police

officers bears any relevance at all in a case, like the present one, in which

the police provided no material testimony with respect to the charge of

which the defendant was convicted.

9 The dissent asserts that we are ‘‘missing the point’’ in concluding that

the Singh violations were necessarily harmless insofar as they related to

the police testimony because the purpose of that improper questioning was

to undermine the defendant’s credibility generally. Whatever the intent of

the prosecutor, however, the issue that we must address is whether that

questioning was, in fact, harmful. The questioning pertaining to the police

testimony was demonstrably not harmful because, as we have explained,

the jury verdict of not guilty on the drug charge reflects the fact that, the

Singh violations notwithstanding, the jury refused to credit the testimony

of the police officers over that of the defendant. In such circumstances, the

potential for harm that a Singh violation creates simply is not realized.

10 The following is the relevant portion of the prosecutor’s cross-examination

of the defendant:

‘‘Q. . . . [D]id . . . Harris ask you for change so that he could get narcotics?

‘‘A. Yes, he did.

‘‘Q. This is after you told him to ‘F’ off in front of the grocery store earlier

that night?

‘‘A. Yes, it is.

‘‘Q. Now, all this testimony from . . . Harris then about the bus stop;

that was a lie?

‘‘A. Yes, it was.

‘‘Q. And, all the police officers’ testimony is a lie?

‘‘A. I didn’t say that. What part of their testimony?

‘‘Q. The part of the testimony that contradicts everything about a robbery.

. . . [I]sn’t it true that your whole story is made up to fit the fact that you

were caught by the police before you could get away from the scene?

* * *

‘‘A. No, that’s not true.’’

11 Indeed, a review of the record suggests that the prosecutor may have

misspoken or been momentarily confused when he posed the question. The

defendant obviously was confused by the question because he asked what

the prosecutor was talking about and flatly denied ever having said or

suggested that the officers had lied about the larceny.

12 Of course, we do not foreclose the possibility that, in a particular case,

Singh violations alone would result in sufficient prejudice to the defendant

to warrant a new trial.

13 Thus, the Singh violations pertained to a central issue in the case. In

addition, there is nothing in the record to suggest that those violations were

invited by defense counsel.

14 The dissent indicates that we have failed to consider the cumulative

effect of the Singh violations in evaluating whether the defendant was

harmed by those violations. We have done no such thing. If we appear to

have ‘‘parse[d] [the] improprieties by the charge,’’ as the dissent alleges, it

is only because we are required to consider the effect of the Singh violations

on the individual charges; see State v. Spencer, supra, 275 Conn. 182; and

because the present case presents the unusual scenario in which the jury

found the defendant not guilty of the charge that was associated with the

most serious Singh violations, a fact that we must accord significant weight

in evaluating whether the improprieties as a whole deprived the defendant

of a fair trial.

We note, moreover, that ‘‘are they lying’’ questions are prohibited not

because they are so inherently prejudicial as to always require a new trial;

they are barred, rather, to reduce the risk of the occurrence of specific

harms, such as dilution of the state’s burden of proof. See, e.g., State v.

Singh, supra, 259 Conn. 707–10 (identifying risks attendant to asking witness

to comment on veracity of other witnesses). Rather than explain why we

are mistaken in our conclusion that, for reasons unique to the present case,

none of those harms is implicated, the dissent appears to take the position

that simply asking a defendant whether another witness has lied always

will be harmful in a case that pits the defendant’s testimony against that of

another witness, even if the witness on whose veracity the defendant is

asked to opine provided no material testimony in the case. For example,

the dissent states that, ‘‘if we consider these questions improper and have

clearly stated that prohibition so that prosecutors, who are officers of the

court, know that they are improper, we must hold such officers of the

court accountable,’’ and that, ‘‘on three separate occasions, the prosecutor

deliberately violated Singh by explicitly asking the defendant to comment

on the veracity of other witnesses . . . .’’ In taking such a position, the

dissent misapplies Singh by improperly conflating the issue of whether an

impropriety occurred with the separate and distinct issue of whether that

impropriety deprived the defendant of a fair trial. Furthermore, in seeking

to hold the prosecutor accountable for the Singh violations by reversing

the judgment of conviction, the dissent contravenes the well established

rule that ‘‘[t]he fairness of the trial and not the culpability of the prosecutor

is the standard for analyzing the constitutional due process claims of criminal

defendants alleging prosecutorial [impropriety].’’ (Internal quotation marks

omitted.) State v. Paul B., 315 Conn. 19, 36, 105 A.3d 130 (2014).

Finally, the dissent asserts that we have ‘‘essentially overrule[d]’’ Singh

in light of our determination that any possible prejudice that might inure

to a defendant by virtue of a Singh violation is minimal when, as in the

present case, either the defendant or the witness on whose credibility the

defendant has been asked to comment is, in fact, lying. On the contrary,

we expressly reaffirm Singh’s prohibition against ‘‘are they lying’’ questions.

We simply conclude that, under the circumstances of this case, in which

the defendant’s sole claim with respect to the assault charge was that Harris

was untruthful, asking the defendant directly whether the victim was lying,

although improper, gave rise to no material harm.

15 The defendant raises several additional claims of prosecutorial impropriety

that the Appellate Court declined to address; see State v. Jones, supra,

139 Conn. App. 477; none of which is persuasive. For example, the defendant

contends that it was improper for the prosecutor to argue that, when the

police arrived on the scene, the defendant had to concoct a story about a

robbery in order to divert suspicion away from him. The defendant also

contends that it was improper for the prosecutor to argue that the state’s

witnesses had nothing to gain from testifying untruthfully whereas the defendant

had everything to gain from doing so. As we previously have explained,

however, ‘‘in a case that essentially reduces to which of two conflicting

stories is true, it may be reasonable to infer, and thus to argue, that one of

the two sides is lying.’’ (Internal quotation marks omitted.) State v. Ciullo,

supra, 314 Conn. 52. As we also have stated previously, it is not improper

for a prosecutor to argue that the victim and the police had no reason to

lie whereas the defendant did when, as in the present case, the argument

merely underscores an inference that the jury readily could have drawn

entirely on its own. See State v. Stevenson, 269 Conn. 563, 584–86, 849

A.2d 626 (2004). The defendant further argues that the prosecutor was

unnecessarily sarcastic and ‘‘made veiled assertions against [the defendant’s]

character’’ by arguing, among other things, that the defendant, by his own

admission, frequents an area ‘‘known for drug activity’’ with ‘‘large sums of

money’’ just to ‘‘hang out’’ and ‘‘apparently, is a very nice person who is

willing to make change for people in a drug area . . . . He’s even so trusting

as to be willing to hand that person the money while he looks for the rest

of the change . . . .’’ Although this court neither encourages nor condones

the use of sarcasm because its needless or excessive use may improperly

influence the jury; see, e.g., State v. Salamon, 287 Conn. 509, 564, 949 A.2d

1092 (2008); we do not believe that the remarks at issue exceeded the

bounds of fair argument. We conclude, rather, that the prosecutor simply

was urging the jury to draw an inference supported by the evidence, namely,

that the defendant’s account of the circumstances surrounding the assault

was manifestly unbelievable. Cf. State v. Stevenson, supra, 584 (prosecutor’s

remark during closing argument describing defendant’s explanation as

‘‘ ‘totally unbelievable’ ’’ was ‘‘a comment on the evidence presented at trial,

and it posited a reasonable inference that the jury itself could have drawn’’).

Finally, the defendant contends that, on several occasions, the prosecutor

argued facts that were not in evidence. For example, the defendant claims

that the prosecutor improperly argued: ‘‘If [Harris is] a drug user, wouldn’t

he know where to get the drugs from? Would he walk up to somebody, a

stranger such as [the defendant], and say, hey, can I buy crack cocaine?

We know . . . Harris is not a drug user. He did in high school, and he

admitted that to everybody right there on the stand, yep, high school; [he]

tried marijuana. But . . . Harris also has proof that he hasn’t been using

marijuana or any other drug since then. Thirty-one years with Kimberly-

Clark [Corporation], which has a drug policy testing program; he’s clear.’’

We reject this claim because the prosecutor’s argument was adequately

rooted in the evidence. Although it is true, as the defendant asserts, that

the state presented no direct proof, apart from Harris’ own testimony, that

Harris had not used drugs in more than thirty years, it is clear that the

‘‘proof’’ to which the prosecutor referred was, in fact, Harris’ testimony

concerning his former employer’s mandatory drug testing policy, which

Harris had cited as the reason he did not use drugs. If the jurors had credited

this testimony, as they were free to do, they reasonably could have found

that Harris was not a drug user and that the defendant’s assertions to the

contrary were false.

16 The Appellate Court did not address this claim because it concluded

that the defendant was entitled to a new trial on the basis of his prosecutorial

impropriety claims. See State v. Jones, supra, 139 Conn. App. 471 n.2. After

we granted the state’s petition for certification, the defendant filed a statement

pursuant to Practice Book § 63-4 (a) (1) indicating that he intended

to present his instructional claim as an alternative ground for affirmance.

17 The defendant contends that he preserved this claim for appellate review

by virtue of the jury instructions that the defense requested in the trial

court, and the state does not contest this assertion.

18 See Connecticut Criminal Jury Instructions § 2.8-2 (B), available at

https://www.jud.ct.gov/JI/criminal/part2/2.8-2.htm#B (last visited December

4, 2015).

19 We recognize that, because the defendant in Revels claimed that the

trial court’s instruction was plain error; State v. Revels, supra, 313 Conn.

782–83; this court’s review of his claim arguably was more limited than our

review under the plenary standard that applies in the present case. See id.,

783–84. We nevertheless rely on our reasoning in Revels because our analysis

therein with respect to the issue of whether the trial court’s instruction

misled the jury is no less applicable to our consideration of the instructions

in the present case.

20 We disagree with the defendant’s contention that Harris’ testimony was

equivocal on this point. As the state observes, Harris clearly and unequivocally

testified that the defendant started attacking him almost immediately

after he approached him on Beaver Street.

21 As we explained previously; see part I of this opinion; the defendant’s

testimony concerning his altercation with Harris was diametrically opposed

to Harris’ testimony about that encounter. Consequently, the jury was

required to decide which one was telling the truth and which one was not,

and the jury obviously credited the testimony of Harris over that of the

defendant. Although it is theoretically possible that the jury did not credit

all of Harris’ testimony with respect to the precise manner in which the

assault occurred, there is nothing in the record to suggest that the jury did

not credit his testimony in all material respects.

22 The fourth amendment to the United States constitution provides: ‘‘The

right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, supported by oath or affirmation,

and particularly describing the place to be searched, and the persons

or things to be seized.’’

The defendant also makes a claim under article first, § 7, of the Connecticut

constitution. He does not contend, however, that article first, § 7, provides

broader protection than the fourth amendment under the circumstances

presented, and, in fact, he has not separately briefed and analyzed his

state constitutional claim. Accordingly, we address the defendant’s federal

constitutional claim only. See, e.g., In re Kevin K., 299 Conn. 107, 126 n.11,

7 A.3d 898 (2010) (deeming state constitutional claim abandoned because

it was not separately briefed and analyzed).

23 In doing so, the state also implicitly acknowledges that the trial court

and the Appellate Court incorrectly concluded that the police did not exceed

the scope of the defendant’s initial consent when, without obtaining a warrant,

they retained the knife as evidence in connection with his assault

against Harris. We agree with the state that the defendant’s consent to

temporarily turning over the knife to the police for safekeeping does not

extend to the state’s retention of the knife for use as evidence against him.

24 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In

Terry, the United States Supreme Court concluded that police officers may

briefly detain an individual if they have reasonable and articulable suspicion

to believe that he is involved in criminal activity. See id., 22.

25 In support of his contrary contention, the defendant relies on cases in

which courts have indicated that a warrant is required when the subsequent

search or seizure involves a greater intrusion on the defendant’s privacy

interests. See, e.g., Reedy v. Evanson, 615 F.3d 197, 227–30 (3d Cir. 2010)

(plaintiff agreed to have her blood tested ‘‘for the purpose of evaluating the

extent of her injuries and risk of disease from a sexual assault, and for the

purpose of gathering physical evidence to prosecute her assailant,’’ but

police violated her fourth amendment rights by conducting additional drug

testing for investigative purposes because that testing fell outside scope of

her consent, and plaintiff ‘‘indisputably had a reasonable expectation of

privacy in her blood when it was drawn, and she did nothing to forfeit that

expectation’’), cert. denied, 562 U.S. 1256, 131 S. Ct. 1571, 179 L. Ed. 2d 474

(2011); cf. State v. Jackson, supra, 304 Conn. 404 (New Haven police obtained

defendant’s clothing from New York City police and subjected it to DNA

testing, but no fourth amendment violation occurred because ‘‘the mere

transfer of the defendant’s lawfully seized clothes . . . did not result in any

greater intrusion into the defendant’s privacy than had occurred during the

initial lawful seizure, and the New Haven police obtained a search warrant

before they subjected the clothes to forensic testing’’). In the present case,

the mere retention of the knife involved no further intrusion into the defendant’s

privacy interests than did the initial seizure, and no forensic testing

was conducted on the knife that would have brought this case within the

ambit of the cases on which the defendant relies.

26 Although the trial court did not address the issue of whether the police

had probable cause, we may do so on appeal because whether a set of facts

is sufficient to satisfy the probable cause standard is subject to plenary

review; e.g., State v. Johnson, 286 Conn. 427, 433, 944 A.2d 297, cert. denied,

555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008); and the record of the

motion to suppress contains undisputed facts sufficient for our consideration

of that issue. Cf. State v. Torres, 230 Conn. 372, 379, 380, 645 A.2d 529 (1994)

(addressing unpreserved claim that police lacked reasonable suspicion to

justify canine sniff of automobile because ‘‘the question of whether reasonable

and articulable suspicion arises from an underlying set of facts is a

legal conclusion that, if made by a trial court, is subject to plenary review,’’

and ‘‘the record contain[ed] undisputed facts sufficient to [address that

claim]’’). We further note that, for present purposes, the defendant does

not contend that the record is inadequate for our resolution of this issue.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.