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State v. Brett B.

Court of Appeals of Connecticut

December 11, 2018

STATE OF CONNECTICUT
v.
BRETT B. [*]

          Argued September 18, 2018

         Procedural History

         Substitute information charging the defendant with three counts of the crime of murder and with one count of the crime of violating a standing criminal protective order, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Kwak, J.; thereafter, the court denied the defendant's motion to strike certain testimony; verdict and judgment of guilty, from which the defendant appealed.

Affirmed.

          Lisa J. Steele, assigned counsel, for the appellant (defendant).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Prescott and Harper, Js.

          OPINION

          PRESCOTT, J.

         The defendant, Brett B., appeals from the judgment of conviction, rendered after a jury trial, of three counts of murder in violation of General Statutes § 53a-54a (a) and one count of violating a standing criminal protective order in violation of General Statutes § 53a-223a (a). The defendant claims on appeal that (1) he was denied his right to a fair trial because the prosecutor committed improprieties during closing argument by (a) misrepresenting to the jury that certain DNA found at the crime scene belonged to the defendant despite testimony from the state's DNA expert that the defendant was only a possible contributor, and (b) misleading the jury regarding foot impression evidence; and (2) the trial court abused its discretion by admitting into evidence previously undisclosed opinion testimony from the state's forensic expert that a bloodstain found on a tissue at the crime scene appeared to be caused by a finger rather than by blood spatter, which, if credited, tended to implicate the defendant as the perpetrator. We reject the defendant's claims and, accordingly, affirm the judgment of conviction.

         The jury reasonably could have found the following facts. In the late 2000s, the defendant lived with his father, A, in a single-family raised ranch home in East Hartford (East Hartford home). The defendant grew up in the East Hartford home and had lived there intermittently during his adulthood. The main floor of the East Hartford home had two bedrooms connected by a short hallway leading to the kitchen and living room, with a bathroom located off that hallway near the two bedrooms. A third bedroom was located in the home's finished basement.

         In 2009, the defendant's mother, B, moved into the East Hartford home. B, who was divorced from A, had lived for the preceding four years with the defendant's sister, C, in Manchester.[1] Although A and B were civil to each other, B primarily kept to the main level of the home while A stayed in the finished basement. While the defendant was living at the East Hartford house, he occupied one of the two main floor bedrooms.

         On March 26, 2010, the defendant and B had an altercation that resulted in the defendant's arrest and an eventual conviction of a misdemeanor. The defendant moved out of the East Hartford home and into his sister's house in Manchester. On May 10, 2010, the court issued a protective order prohibiting the defendant from assaulting, threatening or harassing B. The protective order was modified on June 23, 2010, to a full no contact protective order, which prohibited the defendant from contacting B in any manner or going to her residence. At the defendant's sentencing, the court again modified the no contact order to a standing criminal protective order. See General Statutes § 53a-40e. The defendant was unhappy with the situation involving his mother and had remarked to a cousin on one occasion that B ‘‘needed to be dead.''

         During the summer of 2010, A's health deteriorated. He died on September 15, 2010, leaving B as the sole occupant of the East Hartford home. The defendant indicated to several people that he blamed B for A's death and was furious with her. Despite the criminal protective order in place, B remained concerned about her safety and believed that her life was in danger.

         Approximately one month following A's death, B invited Michael Ramsey and Pamela Johns to move into the basement bedroom of the East Hartford home. The defendant was angry that B had allowed Ramsey and Johns to move into the house, referring to them as ‘‘homeless people.'' Despite the protective order, neighbors spotted the defendant near the East Hartford home. On one occasion, a neighbor observed the defendant get out of the passenger side of a white Nissan Altima, hide behind a line of bushes, and watch the house. On another occasion, a different neighbor saw someone fitting the defendant's description driving a white Nissan Altima, and then watched him get out of the car and enter a wooded area behind the East Hartford home. B knew that the defendant was watching the house, telling a friend on November 22, 2010, that she was ‘‘worried of the fact that [the defendant] was roaming around the house . . . .'' The friend told B to call the police.

         A short time later, sometime between November 23, 2010, and the early morning hours of Thanksgiving Day, November 25, 2010, B, Johns, and Ramsey were brutally murdered in the East Hartford home, each having been struck repeatedly in the head with an object like a Sheetrock hammer.[2] The bodies were discovered on Thanksgiving Day by police officers who had been conducting a wellness check on B at the request of a niece living out of state. The bodies were all located near one another, with B's and Ramsey's bodies found in the main floor bathroom, and Johns' body found just outside that bathroom in the hallway. There were no signs of forced entry. The front door of the home was locked, but a rear sliding glass door was not. Both women were found wearing jewelry. B's bedroom and the basement bedroom where Ramsey and Johns were staying had been ransacked, although a purse containing $1350 in cash was found hidden under B's bedroom desk. The bedroom that the defendant formerly had occupied was not disturbed.

         A neighbor and former friend of A's noticed the police presence on Thanksgiving and contacted the defendant by phone to inform him that something was happening at the East Hartford home. The defendant responded to the neighbor that ‘‘maybe they're all poisoned in there, maybe they're all dead, '' and, ‘‘maybe they're going to come and blame me for this.''

         Investigators processed the bloody crime scene over the course of seven days. Among the items that were collected and sent to the state forensic laboratory for processing were a plastic bag found behind a bookcase in the defendant's former bedroom, a checkbook and a cell phone charger found on B's bed, and a tissue found in the doorway of the defendant's former bedroom near a piece of skull from one of the victims. The side of the tissue that was facing out into the hallway had blood on it. It was later determined that the blood and skull fragment belonged to Ramsey, but another portion of the tissue contained dried mucous or saliva connected to the defendant through DNA. Bloody foot impressions that were made by socked feet were discovered in the kitchen and photographed for further analysis.

         Because of the domestic complaints by B against the defendant and C, they were identified immediately by the police as possible suspects. The day the bodies were found, the police executed a warrant to search the defendant's person. The defendant had visible marks on his body, including what appeared to be scratches and an injured toe. During the course of the investigation, the police also obtained and executed a search warrant for a white Nissan Altima that was registered to C's daughter, who lived with C and the defendant. The warrant was executed on January 6, 2011, at the East Hartford home. When police informed C, who had driven the vehicle to the East Hartford home that day, that they were seizing the vehicle pursuant to a warrant, C asked if she could remove some items from the trunk of the car. Specifically, she sought to retain possession of two cell phones and chargers that she indicated to police belonged to Johns and Ramsey. She was not allowed to remove the items, and was questioned by the police as to where she had obtained those phones. C indicated that she had found them that same day in the basement bedroom, but, when pressed, claimed she could not remember where in the room she found them. The phones never yielded any useful information to the investigation.

         During the pendency of the criminal investigation into the murders, the defendant became incarcerated on an unrelated drug charge. While in prison, he had a conversation in the prison's dayroom with another inmate, William McCauley. McCauley told the defendant that he was serving a sentence for vehicular manslaughter, after which the defendant asked McCauley if he had killed a close friend. McCauley indicated that he had killed his best friend and that he still had dreams about the incident. The defendant responded that he had ‘‘similar dreams'' and that, although he was in prison on a drug charge, the authorities were ‘‘trying to get him for a triple homicide around Thanksgiving time.'' McCauley's cellmate, Rocco Strazza, who was also in the dayroom at the time the defendant spoke with McCauley, claimed that he overheard the defendant say that he was ‘‘the one who did the triple homicide.''

         The defendant eventually was charged with three counts of murder and with one count of violating a standing criminal protective order. The defendant's first trial ended in a mistrial. He was tried a second time, and the jury in the second trial returned a guilty verdict on all charges. The court, Kwak, J., sentenced the defendant to a total effective term of 180 years of incarceration, with a mandatory minimum sentence of seventy-five years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that, during closing and rebuttal arguments, the prosecutor improperly mischaracterized or overstated portions of the forensic evidence and that those improprieties deprived the defendant of his right to a fair trial. More particularly, the defendant claims that the prosecutor misstated or exaggerated the significance of (1) certain DNA evidence collected from items at the crime scene and (2) bloody foot impressions found in the kitchen. Because we do not agree that any of the challenged remarks were improper, we reject the defendant's claim.

         We begin by noting that the defendant concedes that he did not object at trial to any of the remarks he now challenges on appeal. As our Supreme Court has explained, however, this is not fatal to a prosecutorial impropriety claim. See State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). ‘‘This does not mean, however, that the absence of an objection at trial does not play a significant role in the determination of whether the challenged statements were, in fact, improper. . . . To the contrary, we continue to adhere to the well established maxim that defense counsel's failure to object to the prosecutor's argument when it was made suggests that defense counsel did not believe that it was [improper] in light of the record of the case at the time.'' (Internal quotation marks omitted.) State v. Maner, 147 Conn.App. 761, 782, 83 A.3d 1182, cert. denied, 311 Conn. 935, 88 A.3d 550 (2014). This is particularly true if, as in the present case, a defendant claims prosecutorial impropriety stemming from a prosecutor's discussion of DNA evidence. Such discussions require precise and nuanced distinctions in nomenclature that easily may be misconveyed or misunderstood, especially in light of the zealous advocacy that is part and parcel of a closing argument. If a prosecutor's arguments do not portray accurately the DNA evidence as it was presented to the jury or stray too far from reasonable inferences that may be drawn from such evidence, a contemporaneous objection by defense counsel would permit any misstatements, whether inadvertent or intentional, to be remedied immediately.

         ‘‘The standard we apply to claims of prosecutorial impropriety is well established. In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. . . . In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry. . . . [If] a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show . . . that the remarks were improper . . . .'' (Internal quotation marks omitted.) State v. Grant, 154 Conn.App. 293, 319, 112 A.3d 175 (2014), cert. denied, 315 Conn. 928, 109 A.3d 923 (2015). The defendant also has the burden to show ‘‘that, considered in light of the whole trial, the improprieties were so egregious that they amounted to a denial of due process.'' State v. Payne, 303 Conn. 538, 563, 34 A.3d 370 (2012).[3]

         Certainly, ‘‘prosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . When making closing arguments to the jury, [however, counsel] must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state's advocate, a prosecutor may argue the state's case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . .

         ‘‘While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury ha[s] no right to consider.'' (Emphasis added; internal quotation marks omitted.) State v. Ciullo, 314 Conn. 28, 37-38, 100 A.3d 779 (2014). ‘‘A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. . . . Moreover, when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury.'' (Citations omitted.) State v. Singh, 259 Conn. 693, 718, 793 A.2d 226 (2002). Because ‘‘[t]he prosecutor's office carries a special prestige in the eyes of the jury . . . [i]t is obligatory for prosecutors to find careful ways of inviting jurors to consider drawing argued inferences and conclusions and yet to avoid giving the impression that they are conveying their personal views to the jurors.'' (Citations omitted; internal quotation marks omitted.) Id., 722. With these principles in mind, we turn to whether the prosecutor's challenged remarks in the present case were improper.

         A

         The defendant first contends that the prosecutor mis-characterized the DNA evidence by arguing to the jury that the defendant's DNA was found on several pieces of evidence, which, according to the defendant, did not accurately reflect the testimony of the state's own expert. The defendant's claim focuses on what he characterizes as misstatements about DNA collected from three pieces of evidence: the checkbook found on B's bed, the phone charger located nearby, and the handles of the bloodstained plastic bag found stuffed behind a bookcase in the defendant's former bedroom. The defendant argues that, with respect to those items, the state's expert testified that the defendant only was a possible contributor, and that other male relatives who shared the same Y chromosome, a group that included the defendant's father, A, could have accounted for those results. The defendant notes that the misstatement was particularly significant in this case because both the defendant and A had lived in the East Hartford house and, thus, could have deposited DNA prior to the murders, and there was no evidence presented at trial establishing when the DNA at issue had been deposited or how long it could have been present on the items.

         The state responds that the prosecutor's challenged remarks were supported by the testimony of its expert and that it was not unreasonable or improper for the prosecutor to urge the jury to infer, in light of the evidence as a whole, that it was the defendant's DNA that was found rather than the DNA of his father, who had died two months prior to the murders. On the basis of our review of the entirety of the closing arguments, we conclude that the prosecutor's remarks were not improper.[4]

         The following additional facts are relevant to this claim. Cheryl Carreiro, a DNA analyst from the state forensic laboratory, testified for the state regarding the results of DNA analysis that she performed on biological samples collected at the crime scene or later obtained from items collected at the crime scene. She prepared a number of reports that were admitted through her as full exhibits. During direct examination, she indicated that she had compared DNA profiles derived from the crime scene biological samples with DNA profiles derived from known samples obtained from the three victims and the defendant. She also provided statistical data regarding possible contributors to the various DNA profiles she developed from those samples.

         Carreiro performed two types of DNA tests on samples collected in this case: an ‘‘Identifiler'' test, which looks at both male and female DNA, and a ‘‘Yfiler'' or Y-STR DNA test that only looks for male DNA and, thus, can be useful in analyzing mixed biological samples that contain large amounts of female DNA masking trace amounts of male DNA. See State v. Phillips, 160 Conn.App. 358, 125 A.3d 280, cert. denied, 320 Conn. 903, 127 A.3d 186 (2015). Relevant to the defendant's claim on appeal, Carreiro provided testimony about the DNA profiles developed from the biological samples taken from the checkbook, the phone charger, and the plastic bag handles.

         With respect to the checkbook, Carreiro indicated that biological samples were taken from the checkbook's exterior and interior cover, the top check, and the edges of the checks. When asked to describe the results of DNA testing of those samples, Carreiro first indicated that both the Identifiler and Yfiler results demonstrated that the biological samples taken from the checkbook resulted in a ‘‘mixed sample.''[5] With respect to the three victims, only B was found to be a contributor to the Identifiler profile. Johns and Ramsey were eliminated as contributors. Carreiro testified that the defendant could not be eliminated as a contributor to the Identifiler profile. She explained that ‘‘the expected frequency of individuals who cannot be eliminated as a contributor . . . is approximately one in 10, 000 in the African-American population, approximately one in 880 in the Caucasian population, and approximately one in 3400 in the Hispanic population.'' Carreiro described the Yfiler results as ‘‘inconclusive as to whether [the defendant] could be a contributor to the Yfiler DNA profile.''

         The prosecutor then asked Carreiro the following follow-up question without any objection from defense counsel: ‘‘On the Identifiler, however, in comparison to the known sample of [the defendant], on the swabbing of the checkbook . . . is it fair to say that you identified a partial profile consistent with that of him?'' Car-reiro responded: ‘‘Yes. He cannot be eliminated as a contributor, and that is a partial match.'' Turning to the result of the DNA analysis of biological samples taken from the cell phone charger, Carreiro testified that this also resulted in a ‘‘mixed sample.'' The Identifiler profile yielded inconclusive results as to whether the defendant could be a contributor. With respect to the Yfiler results, Carreiro indicated that ‘‘[the defendant] or another member of the same paternal lineage cannot be eliminated as a contributor, '' and ‘‘[t]he expected frequency of individuals who cannot be eliminated as a contributor to the Yfiler . . . is approximately one in forty-three in the African-American population, approximately one in eighteen in the Caucasian population, and approximately one in thirty-six in the Hispanic population.'' When asked in a follow-up question whether she had ‘‘developed a partial DNA profile consistent with that of [the defendant]on the Y profiler, '' Carreiro answered: ‘‘The Yfiler was-was a partial result, and it was, cannot be eliminated.''

         Multiple biological samples were taken from the white plastic bag. One sample was taken from visible reddish brown stains on the bag that were identified as human blood. Additional samples were taken from the interior and exterior handles of the plastic bag. Regarding the samples taken from the handles, Carreiro testified that this was a ‘‘mixed sample.'' Ramsey and B were both included as contributors to the Identifiler profile, and Johns could not be eliminated as a contributor. According to Carreiro, the defendant also is ‘‘included as a contributor'' to the Identifiler profile, and ‘‘[the defendant] or another member of the same paternal lineage is included as a contributor to the Yfiler DNA profile.'' The expected frequency of individuals who could be a contributor to both the Identifiler and Yfiler profiles is ‘‘approximately one in seven million in the African-American population, approximately one in 880, 000 in the Caucasian population, and approximately one in 4.2 million in the Hispanic population.''

         The prosecutor asked Carreiro about a summary table she had included in her report regarding the swabbing of the bag's interior and exterior handle. In particular, he inquired whether she had identified ‘‘the full profile of three individuals and the partial profile of [Johns].'' Carreiro responded: ‘‘Yes. The . . . first inclusion is [Ramsey], the second is [B]. The third cannot be eliminated, [Johns], and the fourth [the defendant].'' On cross-examination, defense counsel elicited testimony from Carreiro that the defendant's father, A, was ‘‘another member of the same paternal lineage'' and would have the same Y-STR profile as the defendant.

         During closing argument, the prosecutor set forth the state's theory of the case and, in that context, made the following statements regarding the DNA evidence, including statements challenged by the defendant, which are emphasized: ‘‘Answer the $20, 000 question then. How does [the defendant's] DNA end up on items in the house when he hasn't been there in about six months? We know the answer. This is the tissue as it was found in the doorway of his bedroom next to what appeared to be a piece of a skull. The tissue was recovered and photographed by the state forensics lab. You see a large amount of blood in this picture, and you see at the other end of the tissue what was described as a yellowish mucous-like item consistent with mucous, tested positive for the presence of amylase. In place and in time, the defendant is connected to one of the victims. And not one of the victims innocently with touch DNA, with bloodshed. The blood on that tissue is that of [Ramsey]. The remnants of blood on his nose, DNA's back to [the defendant].

         ‘‘[The defendant], I would claim, ladies and gentlemen, who is covered in blood, and he blew his nose. And look at the back of that tissue. The back of the tissue is actually more evidence of blood, consistent with transfer or smearing. In a vacuum, as the lab people will say, when you get that material and put it in a test tube and get someone's DNA, they can't look at the DNA and date it. They can't look at the DNA and say, I can tell you when it was deposited on an item such as the Kleenex. But what you ladies and gentlemen know from the evidence is, the defendant blew his nose, and his bloody face and/or hands had blood [on] them, which passed over to that Kleenex. There's no way around it. And you know what? That's the first of the items.

         ‘‘This is a picture of [B]'s room and [B]'s bed. You'll notice on the bed is a cell phone with a charger attached to it, a checkbook with checks inside it, and another set of checks next to it, seized. But let's not go to the lab yet, ladies and gentlemen. Let's look at what you see here because you know why, that's important. And if we're all on board that the attack happened at night, is [B] sleeping with her checks and her checkbook and her phone not plugged in, yet plugged into the phone itself, the charger, and what appears to be a tin of Altoids that [a detective] described? No. Those items were deposited and thrown and put on the bed close in time to when the attack happened. That's what's important to understand. This is where you use your common sense.

         ‘‘And let's go to the results of the analysis conducted on those items. [The defendant], in a partial DNA profile, is found on the wall end portion of the charger of that phone. And on the checkbook, [the forensic examiner] examined the checkbook. And from swabbing the blue section of the checkbook and top of the checks and the edges, she came up with-you have the reports-[B] obviously was on this checkbook. But who else was on this checkbook? In a partial profile, [the defendant].

         ‘‘Let's get to time and place, ladies and gentlemen. The defendant, who hasn't been in the house since at least June, 2010, though he claims back to March, 2010, this check is dated November 15, 2010, and there are no additional written checks from the checks in here. The register itself starts recording back in August 11th. This, ladies and gentlemen, dates the DNA.

         ‘‘And the bag, again, from the starting point that [the defendant] is not in that house, a bag stuffed behind a bookcase in his room. You'll remember that the doorway is over here. It made entire sense when [the detective] said she can't imagine, based on her training and experience, that blood on that bag came from cast-off or spatter from the attack that happened in the hallway. Hey, and let's face it, we saw the photos. There was blood everywhere. So, literally, you saw it proof positive the blood flew everywhere, but what the blood didn't do is, it didn't take corners.

         ‘‘And there virtually was no way that the blood found on that bag, which was [B]'s blood, came as cast-off or spatter. It was deposited there by someone who was bloody. And you know who that bloody person was? [The defendant]. Ladies and gentlemen, we have the trifecta in that bag. You saw the picture from the lab. You've seen what looked like kitchen bags, if they come either folded in a box or rolled up in a roll. This bag appeared to have been opened at one time. Is it part of the cleanup process, ladies and gentlemen? But the swabbing at the top of the bag has DNA profiles of all four people involved: the three victims and [the defendant].

         ‘‘Now, [the defendant] arguably never had contact with [Johns] or [Ramsey]. They moved in somewhere in October, and he hadn't been in the house for about six or seven months by then. Or was he? There's no way around it, ladies and gentlemen. In time and in place, the DNA results tell you a story.

         ‘‘I touched already on the bag. The bag speaks to evidence of someone making some attempt at cleaning up. Look at the entire scene. Look at what was presented to you from the scene. We have a virtual bloodbath in the hallway and the bathroom where the three victims were found.

         ‘‘Questions were asked of detectives, and, I think, of some of the forensic analysts at the lab as to the likelihood that the attacker would be covered with blood. Yes. Yes. And the simple answer to that is, look at the exterior of the house. There's not a lot of blood outside. There were one or two drops. One right outside the slider and then one on the stairs.

         ‘‘It answers a question. The attacker stayed in that house, changed clothes, bagged up bloody items, cleaned himself before he exited because if we're to assume that a bloodied attacker left through one of those doors without doing any of that, then you would've had a blood trail, and you don't.'' (Emphasis added.)

         The prosecutor also briefly revisited the DNA evidence in his rebuttal argument, stating: ‘‘For you, as you assess this evidence, it makes it easier for you because not one of these items of evidence stands alone. Collectively, they paint a picture as to who the killer is. And again, the entirety of the checkbook, which spans from August to November, the defendant isn't, shouldn't, and per his own words, wasn't in that house. And the most compelling piece of evidence is that bag. That bag, which has the DNA of every individual involved in this crime, the three victims and the defendant.'' (Emphasis added.)

         The defendant argues that the emphasized portions of the prosecutor's arguments sought to mislead the jury by asserting facts not in evidence, which is improper. State v. Singh, supra, 259 Conn. 718. With respect to the checkbook, the defendant claims that the prosecutor's statement that his DNA was found ‘‘[i]n a partial profile'' was misleading because, to the extent that the statement referred to the Yfiler profile, the defendant's DNA could not be distinguished from A, who was living at the East Hartford home until mid-September, 2010, after the checkbook began to be used in August, 2010. The defendant argues that the prosecutor also misstated the DNA results with respect to the cell charger by indicating that the defendant's DNA was found ‘‘in a partial DNA profile.'' The defendant asserts that this was incorrect because Carreiro had testified that the Identifiler profile was inconclusive as to the defendant and that the Yfiler had indicated only that the defendant or a member of the same parental lineage could not be eliminated as a contributor. Finally, with respect to the bag handles, the defendant notes that Carreiro testified that ‘‘[the defendant] or another member of the same paternal lineage is included as a contributor'' to the Yfiler profile, whereas the prosecutor stated in closing argument and rebuttal that the mix sample obtained from the bag included DNA from the defendant.

         ‘‘We long have held that a prosecutor may not comment on evidence that is not a part of the record and may not comment unfairly on the evidence in the record.'' State v. Fauci, 282 Conn. 23, 49, 917 A.2d 978 (2007). ‘‘It is not, however, improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .'' (Emphasis added; internal quotation marks omitted.) State v. Gibson, 302 Conn. 653, 660, 31 A.3d 346 (2011). We previously have held that, if the evidence presented at trial is that the defendant is included as a contributor to a DNA profile, then it is not necessarily improper for a prosecutor to argue to a jury during closing argument that the DNA found was the defendant's as long as that is a reasonable inference to be drawn in light of the evidence as a whole. See State v. Jones, 115 Conn.App. 581, 597-600, 974 A.2d 72, cert. denied, 293 Conn. 916, 979 A.2d 492 (2009). We see no reason why this same principle would not also apply to instances in which the defendant could not be eliminated as a contributor. See State v. Small, 180 Conn.App. 674, 687-88, 687 n.3, 184 A.3d 816 (finding claim unpreserved but observing in dicta that it was not improper for prosecutor to invite jury to draw inference that defendant's DNA was on mop handle in light of expert testimony that he could not be eliminated as contributor), cert. denied, 328 Conn. 938, 184 A.3d 268 (2018). In either instance, the defense was not precluded from arguing that the inconclusive nature of the DNA evidence left reasonable doubt about the defendant's guilt on the basis of the statistical probabilities presented.

         Here, the prosecutor's statements regarding the DNA evidence were made in the context of his setting forth the state's theory of the case, and much of the prosecutor's closing argument focused on the evidence other than DNA that tended to support the theory that the defendant had committed the murders. It would have been clear to the jury that if evidence tended to demonstrate that the defendant was a possible contributor to a DNA profile, the state was asking the jury to draw every reasonable inference to conclude that it was, in fact, the defendant's DNA that was found, and not that of another possible contributor. The jury had heard Carreiro's testimony and was able to evaluate the state's closing arguments in light of its own understanding of that testimony, which also included statistical evidence about the likelihood that the defendant's DNA was the source of the profiles developed from the crime scene evidence. The defendant's argument with respect to the checkbook, which focuses on the Yfiler profile, also misses the mark because it ignores the fact that Carreiro testified that the defendant could not be eliminated as a contributor and, thus, ‘‘was a partial match, '' with respect to the Identifiler profile. Further, although it may be accurate with respect to the charger and bag to note that the Yfiler results indicated that both the defendant and A were possibly contributors to the DNA found on those items, the prosecutor properly asked the jury not to look at the results of each item individually, but to view all the evidence presented collectively in order to ‘‘paint a picture as to who the killer is.'' In other words, the prosecutor was asking the jury to infer from the totality of the evidence presented, including all the nonscientific evidence, that in those instances in which there were multiple possibilities as to the source of the DNA, the defendant was the far more likely contributor.

         It was not necessary for the jury to have found that the state had proven beyond a reasonable doubt that the DNA in question belonged to the defendant in order properly to use that evidence, in conjunction with other evidence, to assess whether the state had met its burden of proving beyond a reasonable doubt that it was the defendant who had committed the murders. Although the state has the burden to prove beyond a reasonable doubt all elements necessary for the commission of a crime, including identity, subordinate facts, such as whose DNA was present on a particular item of evidence, may be established by inference or circumstantial proof and need not be established beyond a reasonable doubt. See State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987) (‘‘[if] a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard''), cert. denied, 485 U.S. 906, 108 S.Ct. 1079, 99 L.Ed.2d 238 (1988).

         The prosecutor never stated that the defendant's DNA was found on any item from which he had been eliminated as a possible contributor to the DNA profile, which would have been improper. To the extent that the prosecutor may have used imprecise language or terminology, the defendant had ample opportunity to object and to correct any perceived misstatement but elected not to do so, suggesting that he did not believe at the time that the remarks warranted such intervention. When considered within the context of the state's entire argument and allowing some leeway for zealous advocacy, as we must, we cannot conclude that the prosecutor made any statements that reasonably can be viewed as improper under the circumstances or that the jury likely was misled by the prosecutor's arguments.[6]

         B

         We next turn to the defendant's contention that the prosecutor engaged in prosecutorial impropriety by misleading the jury about the significance of bloody foot impressions found at the crime scene. We are not persuaded that the prosecutor's remarks were improper.

         The following additional facts are relevant to our consideration of this aspect of the defendant's prosecutorial impropriety claim. At trial, the state called as a witness Lisa Ragaza, a state forensic science examiner specializing in the analysis of imprints. She testified about comparisons that she made between the foot impressions found in the kitchen at the crime scene and known foot impressions the East Hartford Police Department later obtained from the defendant. She testified that the impressions from the crime scene were consistent in size and shape with the known foot impressions of the defendant. She also testified that both the crime scene impression and the known impression of the defendant exhibited a common characteristic, a ‘‘swiping motion'' in the big toe area of the impression. The defendant did not object to this testimony.[7]

         As to her final conclusions, Ragaza testified as follows on direct examination by the prosecutor:

‘‘Q. Now, Ms. Ragaza, you're not here, or, tell me, yes or no, are you capable of saying the known impressions that were submitted by the East Hartford Police Department-so I'll hold up a transparency. The known impressions by the East Hartford Police Department, the person who made those actually made what was submitted from the crime scene.
‘‘A. No, I cannot.
‘‘Q. And why not?
‘‘A. There's no individual characteristics present in the imprints from the crime scene that would allow me to make an identification or an individualization as to who made those imprints.
‘‘Q. Okay. However, based on your examination, you are of the conclusion that they are consistent in size and shape?
‘‘A. Uh, yes.
‘‘Q. Let me ask you. I want to ask you to-in reviewing all of the prints from the crime scene with these photographs that look to be coming off of linoleum, for lack of a better word, did you ...

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