Opinion
Thе defendant, Brian T. Francione, Jr., appeals from the judgment of conviction, rendered following a jury trial, of arson in the first degree in violation of General Statutes § 53a-111 (a) (1). On appeal, the defendant claims that (1) the trial court improperly denied his motions for a judgment of acquittal because the evidence was insufficient to establish that the fire was set intentionally and that the defendant was the individual who set the fire, and (2) prosecutorial improprieties during closing arguments deprived the defendant of a fair trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In April, 2008, the defendant was eighteen years old, a junior in high school and a member of the Junior Firefighters in Ansonia. The Junior Firefighters consisted of individuals between fourteen and eighteen years old who provided assistance to the Ansonia volunteer fire department at fire scenes.
On April 14, 2008, the defendant stayed at Langrieger’s house. Langrieger lived with his parents at 14 Jarvis Drive, which is approximately nine houses away from where the defendant lived with his parents on Benz Street.
Approximately ten to twenty minutes after the defendant left Langrieger’s house, Langrieger went outside and saw the defendant jogging toward the house while holding a bag. Langrieger could see that there was a fire down the street because “the whole street was glowing up orange.” The defendant told Langrieger that he lit the fire “because there hasn’t been a structure fire lately . . . .” Langrieger and the defendant then heard the tone from Langrieger’s pager announcing a fire at 21 Martin Terrace, which is approximately seven houses away from Langrieger’s house. The defendant left Langrieger’s house and ran toward the fire, where he met his father and grabbed his fire gear from the back of his father’s car.
At approximately midnight, Christopher Flynn, a sergeant in the Ansonia police department, received a call that there was a fire on Martin Terrace. He arrived at 21 Martin Terrace and observed a fire on the exterior wall of the garage attached to the house. Flynn banged on the front door and awoke the homeowner, Patrick DiCantio, informing him that his house was on fire and that he needed to evacuate. After DiCantio exited the house, Flynn checked the interior for more occupants. He looked into the garage, where he observed flames in the front far comer “starting to creep up the wall” and “roll toward the ceiling.” As Flynn was getting DiCantio out of the house, other emergency personnel began to arrive at the scene, including Ralph E. Tingley, the fire marshal for Ansonia. Tingley observed that the fire was burning almost the entire exterior side wall of the garage. In total, approximately forty firefighters responded to the fire.
The firefighters eventually gained control of and extinguished the fire. The fire burned through the siding, insulation and sheathing of the side wall of the garage, destroying much of the garage. After the fire was extinguished, but before it was cleaned up, Lan-grieger and his family returned to their house and went to bed. The defendant returned to Langrieger’s home sometime thereafter and talked with Langrieger. The defendant again admitted that he had lit the fire “because there hasn’t been a structure fire lately . . .
The next morning, on April 15, 2008, the defendant visited with Samantha Morisseau, with whom he was romantically invоlved,
On May 7, 2008, Morisseau, Perez, Langrieger and the defendant were socializing at Morisseau’s house when John Rafalowski, a detective in thе Ansonia police department, and another detective arrived to discuss the fire with Morisseau. Upon seeing the police car, the defendant told the group to “be cool,” his face turned red and he appeared nervous. Rafalowski asked Moris-seau her age, and after she told him that she was sixteen years old, Rafalowski asked for the telephone number of her mother. After the detectives left, the defendant stated, “I bet [the police were] here because they think I started the fire.” The defendant then stated that he had to go home and left Morisseau’s house.
On another occasion, on or about May 7,2008, Moris-seau asked the defendant if he had started any other fires because there had been an additional fire on Wakelee Avenue in Ansonia subsequent to the fire at 21 Martin Terrace. The defendant responded that “the only fire he started was on Martin Terrace, that he swears to God he didn’t start the Wakelee Avenue fire.” Morisseau spoke with the defendant again on May 13, 2008. The defendant asked her if she had talked with the police, and Morisseau denied having done so.
On May 16, 2008, Rafalowski and Patrick Lynch, a detective sergeant in the Ansonia police department, interviewed the defendant at Ansonia High School. The defendant denied any involvement in starting the fire at 21 Martin Terrace. Lynch noticed, however, that when the conversation tinned to the fire, the defendant appeared nervous.
Tingley, Ansonia’s fire marshal, and Michael Grasso, a fire investigator for the homeowner’s insurance company, conducted separate investigations of the fire at 21 Martin Terrace. Both individuals determined, after examining the bum patterns, that the fire began on the exterior side of the garage. They also excluded accidental or natural causes. Tingley and Grasso both determined, for example, that there were neither any problems with the electrical system nor anything elsе in the garage that could have ignited the fire and that there had been no thunderstorms on the night of the fire. They ultimately concluded that the fire had been set intentionally. No accelerants were found, however, in the debris tested by the forensic laboratory.
The defendant was charged with arson in the first degree in violation of § 53a-111 (a) (1), and a jury trial followed. At the close of the state’s case, the defendant made an oral motion for a judgment of acquittal on the ground of insufficiency of the evidence. The court denied the motion. The defendant renewed his motion for a judgment of acquittal at the close of all of the evidence, and the court, again, denied the motion. On June 1, 2010, the jury found the defendant guilty of the arson charge. On August 6, 2010, the court sentenced the defendant to a total effective term of ten years of imprisonment and two years of special parole. Additional facts will be set forth as necessary.
I
The defendant first claims that the court improperly denied his motions for a
“The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the jury [reasonably could have] concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. . . . The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict. ... It is established case law that when a defendant challenges the sufficiency of the evidence, we apply a twofold test. We first review the evidence . . . in the light most favorable to sustaining the jury’s verdict. We then determine whether,
“[I]t is well settled that [w]hether [a witness’] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . [T]he [jury] can . . . decide what — all, none or some — of a witness’ testimony to accept or reject. . . . [Qjuestions of whether to believe or to disbelieve a competent witness are beyond our review .... In addition, [e]vidence is not insufficient merely because it is conflicting or inconsistent. ... A trier of fact is free to reject testimony even if it is uncontradicted . . . and is equally free to reject part of the testimony of a witness even if other parts have been found credible. . . . [A]n appellate court does not retry the case or evaluate the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Andersen,
The jury was entitled to credit the testimony of Tin-gley, Grasso, Morisseau, Perez and Langrieger, which testimony adequately supports a finding that the defendant set the fire at 21 Martin Terrace with the intent to destroy or damage the building. See General Statutes § 53a-111 (a) (1).
II
The defendant next claims that the prosecutor engaged in certain improprieties during the state’s rebuttal closing argument that deprived him of a fair trial. We conclude that, although some of the prosecutor’s comments were improper, the defendant was not deprived of his due process right to a fair trial.
After setting forth the applicable principles of law, we address each of the alleged improprieties in turn and then determine whether the sum total of the incidents found to constitute improper conduct deprived the defendant of a fair trial. “[I]n analyzing claims of prose-cutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Ancona,
The following standards guide our review of whether the prosecutor engaged in improprieties. “[Prosecu-torial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviеwing court must give due deference to the fact that [c]ounsel 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. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. . . . This heightened duty derives from our long recognition of the special role played by the state’s attorney in a criminal trial. ... By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no convictiоn through the aid of passion, prejudice, or
“A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Similarly, a prosecutor should not inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Warholic,
“In evaluating whether the [impropriety was so serious as to amount to a denial of due process], we consider the factors enumerated by [our Supreme Court] in State v. Williams,
A
The defendant first takes issue with the prosecutor’s comments that Ansonia was a small town in which volunteer firefighters willingly risked their lives to save their neighbors and that the defendant “shattered” the peace of the town when he set the fire.
We reject the state’s contention that comments supported by the evidence at trial and the inferences reasonably drawn therefrom “never” are improper. Although “a prosecutor generally is not prohibited from referring to facts in evidence during arguments to the jury”; (emphasis added) State v. Melendez,
We agree with the state, however, that the first set of comments challenged by the defendant were not improper because the prosecutor was responding to defense counsel’s reference to the fire as a nonserious event for the volunteer firefighters who responded. As mentioned, during the defendant’s closing argument, defense counsel stated: “This was more like a bonfire for the volunteer fire department of Ansonia. They got forty or fifty volunteer firefighters, presumably pleased as punch can be out doing something in the middle of the night, all traipsing through the crime scene.” The prosecutor clearly was referencing defense counsel’s comment when he stated: “I don’t know if all those guys are eager to go out and risk their Uves as counsel would Uke you to beheve, but, it is, it is a small fire department. And, what did all the evidence show? That this is a town where people come together to help their neighbors.” We also conclude that the remainder of the challenged statements were not an inappropriate response to defense counsel’s comments. See footnote 13 of this opinion. We reiterate that not “every use of rhetorical language or device [by the prosecutor] is improper.” (Internal quotation marks omitted.) State v. Ancona, supra,
B
The defendant next challenges the prosecutor’s comments in which he described DiCantio’s testimony as “typical understatement,” stated that DiCantio “built [his home] with his own two hands,” and referred to the fire as a “bad dream” and “everybody’s nightmare.”
We conclude that the comment describing DiCantio’s testimony as “typical understatement” was not improper. We do not consider this comment to be of the type that appeals to the emotions, passions or prejudices of the jury. As to the argument that the commеnt constituted an improper expression of opinion, the prosecutor was not expressing his opinion as to DiCan-tio’s testimony but, rather, simply was describing the tone of the testimony. The comment also was based on the evidence and the reasonable inferences to be drawn therefrom. “We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The state’s attorney should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows, or the like. . . . [C]ounsel is entitled to considerable leeway in deciding how best to highlight or to underscore the facts, and the reasonable inferences to be drawn therefrom, for which there is adequate support in the record. We therefore never have categoricаlly barred counsel's use of such rhetorical devices . . . as long as there is no reasonable likelihood that the particular device employed will confuse the jury or otherwise prejudice the opposing party.” (Internal quotation marks omitted.) State v. Boutilier,
Regarding the prosecutor’s comments that DiCantio “built [his home] with his own two hands” and his references to the fire as a “bad dream” and a “nightmare,” we first note that the comments were based on the victim’s testimony.
C
The defendant next challenges the prosecutor’s comments describing the defendant as having “betrayed” various people, evoking the image of an elderly sleeping man whose home and peace of mind never will be the same, and referencing “justice.”
We consider the repeated references to “justice,” given their contеxt, to be improper. Lawyers frequently invoke “justice” in arguing their cases. Asking a jury, in a general, amorphous sense, to do “justice” is not improper. But a lawyer crosses the line when arguing that “justice” requires aparticular result in aparticular case, e.g., conviction of the defendant. This is simply another way of telling a jury that its verdict will be unjust if it does not find the defendant guilty. We cannot countenance such an argument. In this case, the comments that the jury “should do justice for those firefighters who risked their fives” and “for those neighbors who came out to help that night,” and that “justice demand[s]” and “require[s]” the jury to find the defendant guilty amounted to improper appeals to emotions. See State v. Thompson,
We do not, however, conclude that the remainder of the challenged comments were improper. We recognize that the repeated references to betrayal might constitute an improper appeal to the passions and emotions of the jury in certain situations because such comments can create an undue risk that the jury would find the defendant guilty, in part, on the basis of a negative character trait rather than “according to a rational appraisal of the evidence . . . .” (Internal quotation marks omitted.) State v. Long,
The statement that the defendant “endangered the life of a sleeping, soundly sleeping, elderly man, in the home that he built and raised his family in” was merely a rhetorical flourish that was based on the evidence. Additionally, the prosecutor’s statement that people “were endangered for nothing more than a cheap thrill” was relevant to the defendant’s motive, an issue the jury properly may consider. See State v. Ramsundar,
D
Last, the defendant challenges the prosecutor’s use of a PowerPoint presentation that summarized testimony.
We agree with the state that, without more, “the mere use of a PowerPoint presentation does not rise to the level of an impropriety.” It is “the legitimate and longstanding purpose of all closing argument” to “comment upon facts properly in evidence and upon reasonable inferences to be drawn from them.” (Internal quotation marks omitted.) State v. Pereira,
E
We next address whether the references to “justice,” which we have concluded were improper, were so prejudicial as to amount to a denial of the defendant’s due process right to a fair trial. “In other words, we must decide whether the sum total of [the state’s attorney’s] improprieties rendered the defendant’s [trial] fundamentally unfair. . . . The question of whether the defendant has been prejudiced by prosecutorial [impropriety] . . . 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. Bermudez,
As mentioned, we evaluate the defendant’s due process claim in light of the factors enumerated by our Supreme Court in State v. Williams, supra,
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The Junior Firefighters received basic firefighting training and practiced drills approximately twice per month. They assisted the Ansonia fire department by carrying tools on and off the trucks and hooking up the hoses to fire hydrants, among other responsibilities.
Langrieger testified that typically it would take him three minutes to walk from his house to the defendant’s house.
Langrieger testified that he saw the defendant meet someone near the intersection of Jarvis Drive and Martin Terrace. Langrieger further testified that the defendant stated that the person he met with was “Chris.” Langrieger believed the defendant’s reference to “Chris” wаs Chris Tartaglia, another youth who lived in the neighborhood. Langrieger also testified that Tartaglia threatened to kill Langrieger and bum his house down if he did not stop telling people that Tartaglia set the fire at 21 Martin Terrace. Tartaglia accused Langrieger, as well as the defendant, of spreading this rumor.
Joseph Kingston, an assistant fire chief in the Ansonia fire department, testified that the reason there were so many firefighters at the Martin Terrace fire was because “everybody comes out” for “structure fires.” He further testified that Ansonia typically has about two structure fires each year.
Morisseau testified that she and the defendant began dating “a couple of days before the fire,” broke up for “the first time [on] the night of the fire” and continued to date “off and on” until sometime in 2009, when the relationship ended “for good.”
Morisseau, who was sixteen years old at the time, lived with her parents at 26 Martin Terrace, which is about two houses away from 21 Martin Terrace. Morisseau’s father also was a volunteer in the Ansonia fire department. On thе night of the fire, Perez was staying at Morisseau’s house when Morisseau’s father’s pager went off. Morisseau, her mother and Perez left the house and observed the fire, while Morisseau’s father grabbed his gear and responded to the fire. Morisseau saw the defendant running from Jarvis Drive onto Martin Terrace, where he grabbed his gear from the back of his father’s car.
Morisseau had, in fact, talked with the police by this time. On May 9, 2008, she gave a statement to Rafalowski and another detective in the presence of her mother regarding the defendant’s admissions.
The defendant asserts that “[n]either witness . . . was sufficiently qualified to make [the determination that the fire was set intentionally], nor could they present credible, objectively scientific evidence” regarding their conclusions, and, as such, their opinions were speculative. The defendant further contends that Tingley and Grasso conducted flawed investigations in that they failed to interview certain individuals, did not review certain evidence and inaccurately relied on bum patterns. Additionally, as to Grasso, thе defendant argues that the crime scene had not been preserved prior to when Grasso viewed it. Although the defendant objected at trial to the qualification of the witnesses as experts, he does not claim on appeal that the court abused its discretion in qualifying the witnesses as experts; rather, he claims that their testimony, along with the testimony of Morisseau, Perez and Langrieger, was insufficient to establish the defendant’s guilt beyond a reasonable doubt.
The defendant characterizes Morisseau as “a spumed lover,” citing testimony that she referred to the defendant as “her hubby” and herself as “wifey,” and that she wrote the defendant a note on May 6, 2008, in which she expressed anger with the defendant for being insufficiently committed to her.
During cross-examination of each witness, the defendant exposed the jury to all of the facts that allegedly undercut their credibility. We note that “it is the jury’s role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses. ... It is the right and duty of the jury to determine whether tо accept or to reject the testimony of a witness . . . and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial.” (Internal quotation marks omitted.) State v. Miles,
General Statutes § 53a-111 (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .” The defendant does not dispute that a fire occurred at 21 Martin Terrace or that the house was occupied at the time.
Although Langrieger testified on cross-examination that he did not see the defendant pour gasoline into the bottle, he testified that he “could tell [by looking at the bottle] that it was gas. Langrieger then agreed with the prosecutor that he “asked [the defendant] what he was doing with it.” According to Langrieger, the defendant responded that “he needed it for his father,” and then the defendant walked “down Jarvis [Drive] tоward Martin [Terrace] and Benz [Street].”
For clarity, the challenged portions of the comments are italicized. In context, the prosecutor’s remarks were as follows: “This is a case about a small town. It’s a case about Ansonia, Connecticut, in the valley. You’ve heard Sergeant Flynn and Detective Rafalowsky tell you it’s a small police department. It’s a volunteer fire department. I don’t know if all those guys are eager to go out and risk their lives as counsel would like you to believe, but, it is, it is a small fire department. And, what did all the evidence show? That this is a town where people come together to help their neighbors. All these witnesses talked about when this call came in, the tone going off. The tone, the tone, the tone, you heard the tone from a lot of these witnesses because that’s what all these people are. They’re just this guy’s neighbors who came out that night, risked their lives to help their neighbor. And, on April, 15,2008, just after midnight, the peace of that small town, Ansonia, Connecticut, was shattered, shattered when that fire, that set fire, erupted on the side of Mr. DiCantio’s garage at 21 Martin Terrace, and, when that tone went out, those volunteers came out.” (Emphasis added.) Shortly thereafter, defense counsel objected to the prosecutor’s remarks as an improper “appeal to passion and sympathy . . . .” The court overruled the defendant’s objection.
The defendant also challenges the following additional remarks made by the prosecutor later in the state’s rebuttal closing argument: “Now, in this small town of Ansonia, Connecticut, everybody volunteers when somebody’s in trouble. Men and women of the Ansonia volunteer fire departments, you know, they’re not getting paid. Hence, volunteer. They volunteer to run into those buildings when the Mr. DiCantios in the world are running out.” (Emphasis added.)
During the defendant’s closing argument, which preceded the state’s rebuttal closing argument, defense counsel stated: “They talk about crime scene hygiene, preserving the scene of a crime in a way so that you can really find the clues. This was more like a bonfire for the volunteer fire department of Ansonia. They got forty or fifty volunteer firefighters, presumably pleased as punch can be out doing something in the middle of the night, all traipsing through the crime scene. How are . . . any of us supposed to reconstruct the crime scene when a cattle call has gone rushing through there, and no effort has been made to preserve the evidence.” (Emphasis added.)
The prosecutor’s comments were as follows: “Mr. DiCantio talked to you in the tone I would have to call ‘typical understatement. ’ Now, when he talked about a home, that he built with his own two hands, ablaze, what did he tell you he thought it was? It was just a bad dream. I said it in my first statement, it wasn’t just a bad dream. That’s everybody’s nightmare. It was his nightmare that he had to stand across the street and watch his home that he built lit up for no reason.” (Emphasis added.)
The following colloquy occurred during the state’s direct examination of DiCantio:
“Q. What was going through your mind when you were watching your home in flames?
“A. I was hoping it was a bad dream, and someone was going to wake me up and it was all over, but that wasn’t the case. I was wondering, how did this happen, you know. I had no idea how it could have cаught fire. I was worried about the house. Would I be able to go back into the house? Things of that sort.”
On cross-examination by defense counsel, the following colloquy occurred:
“Q. You stood across the street and looked, at some point hoping it was a bad dream, correct?
“A. Correct.
“Q. And one of the first thoughts that crossed your mind is, something must have gone wrong with your car?
“A. No.”
In context, the prosecutor’s comments were as follows: “On April 15, 2008, [the defendant], a junior firefighter, betrayed his fellow firefighters. He betrayed his neighbors. He betrayed his friends who were on that volunteer fire department. He even betrayed his own relatives. His own father had to show up to fight that fire. He endangered the life of a sleeping, soundly sleeping, elderly man, in the home that he built and raised his family in. He endangered the lives of those fellow firefighters, and those police officers, who have to go out to those scenes when that tone goes off. Why? You know, why? Why would you? You know, I’m sure that’s the question everybody’s had right? Why? Why would you do something? Well again, those elements are what we have to prove, not the why.
“But, I’ll give you a why. The evidence shows why a young kid like [the defendant] would light that fire. So, he could go and put it out being the hero running down that street, running down to that fire, get into that fire hydrant, putting on his new turnout gear, be with his father. Why? Because Ansonia hadn’t had a structure fire in a long time. Two of those kids came in and told you that. The firefighters came in and told you that, a quiet department. He was urging for a fire for the thrill of it.
“These people put their lives on the line. Mr. DiCantio’s home, andpeace of mind, will never he the same, for what reason? For the thrill of it. For the thrill of it. They were endangered for nothing more than a cheap thrill. . . .
“In a trial like this one, [justice is] done not by those on this side of the box, the prosecutor, the defense attorney, the judge, the witnesses. It’s done by those on your side of the box. You have to do justice in this case. What does justice require in a case like this? To do justice for the DiCantios in the world, for those firefighters, and those police, who are out there right now waiting for the next tone.” (Emphasis added.)
Defense counsel objected at this point on the ground that thе prosecutor improperly was appealing to sympathy. The court overruled the defendant’s objection, and the prosecutor continued with his argument: “You should do justice for those firefighters who risked their lives on this day, and do justice for those neighbors who came out to help that night. So, what does justice demand? What does it require? What does the evidence overwhelmingly show? I think you all know the answer to that question. The answer to that question, ladies and gentlemen, can be none other than this individual, [the defendant], is guilty of arson in the first degree.” (Emphasis added.)
During the state’s closing arguments, the prosecutor displayed nine PowerPoint slides on an overhead projector. Four slides contained text setting forth the elements of arson in the first degree and summarizing aspects of the testimony of DiCantio, Langrieger (TJ), Morisseau (SM), Perez (NP) and Lynch. The remaining five slides were photographs admitted as full exhibits. The defendant takes issue only with the slides that contained text.
The first slide contained the following text:
“ARSON IN THE FIRST DEGREE
• The Defendant intended to destroy or damage abuilding. Building means a structure that may be used by people аs a residence. (21 Martin Terrace)
• The Defendant started or caused a fire.
• The building was inhabited or occupied when the fire occurred. (Pat DiCantio)”
The seventh slide contained the following text:
“Brian Francione Admits to:
• TJ — I Lit the house on fire .... Because Ansonia hasn’t had a structure fire lately.
• SM — when asked if he started the fire by SM the defendant says yes because Ansonia hasn’t had a structure fire in a while.
• SM says to the Defendant So you did start the fire. The Defendant says YES.
• NP — Don’t tell anyone but I started the fire. I was urging for a fire.” The eighth slide contained the following text:
“Brian Francione Admits to:
• SM — Cops show up at her house looking for SM’s mother. The Defendant says upon the cops departure .... I bet you they think I started the fire. Defendant’s face turned bright red and he leaves immediately.
• SM — The Defendant asks SM if she talked to the police. SM says no. Defendant says I set the Martin Terrace fire not the one on Wakelee Avenue. I swear to God.”
The ninth slide contained the following text:
“Brian Francione Police Interview
• When interviewed at Ansonia High school the Defendant denies any involvement.
• States he was at TJ’s House prior to the fire and responded to the Tone.
• Very nervous during the interview.
• Doesn’t mention Tartaglia.”
After the prosecutor finished his rebuttal closing argument, the defendant moved to preserve a copy of the PowerPoint presentation for the record. Defense counsel explained: “The state characterized the statement of certain witnesses, including the testimony that I had objected to, and I want to be able to show an appellate court prejudice, in the event that it occurs.”
In contrast, each of the slides were directly related to the elements of the crime.
“These factors include the extent to which the [impropriety] was invited by defense conduct or argument, the severity of the [impropriety], the Ire-quency of the [impropriety], the centrality of the [impropriety] to the critical issues in the case, the strength of the curative measures adopted, and the strength of the state’s case.” State v. Warholic, supra,
Defense counsel also stated, shortly thereafter: “You don’t know what the consequences of the guilty verdict will be, but you can imagine. You know this isn’t a scholarship contest. You’ve seen the state’s attorney’s voice quick with mock rage about the outrage, and the lives risked, and you know what he’ll ask for another day, another time, if you let him. And I would say you ought not to let him.”