Opinion
The defendant, Steve D. “Sticky” Nelson, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) 1 and 53a-134 (a) (3). 2 On appeal, the defendant claims that (1) there was insufficient evidence to support a finding of guilty of conspiracy to commit robbery in the first degree, (2) the trial court improperly admitted an audio recording of a 911 call under the spontaneous utterance exception to the hearsay rule, (3) the court improperly admitted the same recording to accredit witness testimony, (4) the court improperly instructed the jury that it could use out-of-court statements to accredit witness testimony and (5) the prosecutor committed improprieties during final argument to the jury. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On January 22,2005, after a day of heavy snowfall, the defendant and another man, both armed and masked, broke into the Wethersfield apartment of Lincoln Marshall and assailed him. The defendant and his cohort bound Marshall’s hands and feet and duct taped his face. Marshall was able to see somewhat with his right eye, which was not completely covered by the tape. The assailants beat Marshall, accosted him for money and rummaged through his apartment. They took Marshall’s wallet, which contained $400, and demanded more money. After heating on Marshall’s stove a knife that they found in his kitchen, the men repeatedly burned him with the knife so that he would tell them where he kept his money. They threatened to kill him. Marshall offered to collect money owed to him from a Hartford man named Brian. The assailants forced Marshаll outside and into his car. They also placed in Marshall’s car and another car approximately $12,000 worth of property they had removed from the apartment. When the defendant removed his mask, Marshall recognized him as Sticky Nelson, a local man from whom Marshall had purchased a car.
After binding Marshall’s ankles again and placing him in the backseat of his car, the defendant and his cohort drove Marshall to Brian’s house to collect the debt, but Brian was not home. They next drove to the defendant’s residence, where they removed from the car items that they had taken from Marshall’s apartment. At this location, another man beat Marshall and threatened to kill him if he did not provide money. Finally, the men drove Marshall to Weaver High School in Hartford, where they untied his hands and left him with his cellular telephone, on which they had dialed 911 for him. They drove away in another vehicle after one of them told Marshall: “If you come out, we’re going to shoot you.”
Marshall informed the 911 operator that he was tied up, bleeding and in need of help. He told the operator that he knew
The state charged the defendant with two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B), two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and (4), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), two counts of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and (2), larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and conspiracy to commit robbery in the first degree in violation of §§ 53a-48 (a) and 53a-134 (a). After a jury trial, the defendant was convicted of conspiracy to commit robbery in the first degree 3 and was sentenced to a term of eighteen years imprisonment. This appeal followed.
I
The defendant first claims that there was insufficient evidence to support finding him guilty of conspiracy to cоmmit robbery in the first degree with a dangerous instrument because the state failed to prove that he had planned prior to the robbery to use a knife during the robbery. More particularly, the defendant contends that to be guilty of a conspiracy to commit robbery in the first degree, he would have to have conspired to use the knife before entering Marshall’s premises. We disagree.
Our standard of review for a sufficiency of evidence claim is well established. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force оf the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because [our Supreme Court] has held that a [trier’s]
factual inferences that support a guilty verdict need only be reasonable.” (Internal quotation marks omitted.)
State
v.
Farnum,
“A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” (Emphasis added.) General Statutes § 53a-134 (a). “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” General Statutes § 53a-48 (a).
“To sustain a conviction under § 53a-48 (a), the state needs to prove beyond a reasonable doubt (1) that a defendant intended that conduct constituting a crime be performed [and] (2) that he agreed with one or more persons to engage in or cause the performance of such conduct . . . .” (Internal quotation marks omitted.)
State
v.
Duncan,
In this case, Marshall testified that the defendant and his cohort heated a knife and, as they demаnded money, used it to bum Marshall on his nose, forehead, stomach and back. The fact that the assailants found the knife in the apartment fails to demonstrate the defendant’s lack of intent to participate in this course of action. As long as the defendant had time to reflect and to deliberate on his actions, he can be held culpable for the requisite specific intent to commit a crime. See
State
v.
Brown,
The evidence in this case manifests the defendant’s complicity in robbery with a dangerous instrument. We therefore conclude that the evidence was sufficient to support a verdict of guilty of conspiracy to commit robbery in the first degree.
II
The defendant next claims that the court improperly admitted the recording of
A
The defendant claims that Marshall’s 911 call should not have been admitted as a spontaneous utterance hearsay exception because Marshall did not have an opportunity to observe the еvents leading to the spontaneous utterance.
5
Specifically, the
“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” (Internal quotation marks omitted.)
State
v.
Wargo,
“Connecticut first recognized the spontaneous utterance exception in
Perry
v.
Haritos,
The test of whether a declarant sufficiently observed the subject of his spontaneous utterance is “whether the evidence supports a finding that the declarant had an opportunity to observe the matters described in his or her statement.”
State
v.
Westberry,
Because the evidence supports the fact that Marshall had an opportunity to observe the matter of which he spoke, the defendant’s claim that Marshall did not observe the events leading to the statements he made during the 911 call must fail.
B
The defendant additionally submits that Marshall’s 911 call should not have been admitted as a spontaneous utterance because Marshall’s statements to the 911 operator were not made under stress sufficient to negate the opportunity for fabrication. More particularly, the defendant asserts that even if Marshall was under stress when he began the 911 call, he was calmer and cаpable of deliberating by the time he identified the defendant to the operator.
We reiterate that “[w]hether an utterance is spontaneous ... is a preliminary question of fact to be decided by the trial judge [and that] [t]he trial court has broad discretion in making that factual determination, which will not be disturbed on appeal absent an unreasonable exercise of discretion.” (Internal quotation marks omitted.)
State
v.
Kirby,
In this case, the defendant’s contention that Marshall’s 911 call should not have been admitted as a spontaneous utterance because Marshall was not under sufficient stress when he identified the defendant is unpersuasive. “[T]he application of the [spontaneous utterance] exception entails a uniquely fact bound inquiry. The overarching consideration is whether the declarant made the statement before he or she had the opportunity to undertake a reasoned reflection of the event described therein.”
State
v.
Westberry,
supra,
It is clear that Marshall, who had been robbed, burned, beaten, threatened with murder, forcibly removed from his apartment, tied up, driven around for an extended period of time and abandoned in wintry conditions, experienced grave stress during his entire conversation with the 911 operator. “I’m still tied up,” he told the operator. “[T]hey burned and cut me. . . . [The blood] is all over my face and my head right now. Please send help.” He exclaimed, “Oh, God,” several times. Even after identifying the defendant as one of his kidnappers, Marshall was distressed enough to get out of the car in freezing conditions, his feet bound, so that the responding police officer would be able to find him. “Please get back in your car,” urged the operator. “The weather is not
Contrary to the defendant’s assertions, Marshall’s statements during the 911 call were made under circumstances sufficiently stressful, indeed painful, to negate
the opportunity for deliberation and fabrication by Marshall. “The principle [justifying the spontaneous utterance hearsay exсeption] rests upon the common experience that utterances made under such circumstances are void of self-interest and are in the same category as exclamations of pain.” (Internal quotation marks omitted.)
Perry
v.
Haritos,
supra,
We conclude that the court did not abuse its discretion in admitting Marshall’s statement to the 911 operator as a spontaneous utterance.
Ill
The defendant’s third claim is that the court should not have permitted the jury to hear the recording of the 911 call becаuse it was prejudicial and because it improperly accredited witness testimony. The defendant specifically argues that due to the emotional nature of the tape of the 911 call and the fact that it was introduced during the state’s direct examination of Marshall, the tape served to bolster Marshall’s testimony with prior consistent statements in violation of the Connecticut Code of Evidence. We are not persuaded.
“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.)
State
v.
Brisco,
In
State
v.
Evans,
“Because of the inherent difficulties in weighing these considerations against the need for relevant evidence, the resolution of this determination has been traditionally entrusted to the trial court. . . . Eveiy reasonable presumption must be given in favor of the correctness of the court’s ruling, and reversal will ensue only where an abuse of discretion is manifest or where injustice appears to have been done. . . . Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” (Internal quotation marks omitted.) Id., 315.
The defendant’s argument that the court’s admission of the recording of the 911 call served to accredit Marshall’s testimony is without merit. The court explained to counsel that the purpose of admitting the 911 call pertained to its relevance: “[T]he evidence offered is relevant in that the exhibit tends to establish that a violent crime had occurred. The crying and upset that is heard on the tape is relevant to the defendant’s intent to cause serious physical injury. The jury could find that the witness was upset due to the infliction of injury. The jury could further find [that] physical force was used and further verif[y] how long the witness was in the car, [which is] relevant, obviously, to the counts of kidnapping. The length of time is also relevant to this witness’ identification of the defendant, how long a look hе was able to get. It also verifies the fact that at one point in time, the individual in the car with him, [in] the BMW, was referred to as ‘Sticky.’ It further establishes, obviously, the violent nature of the attack. The defendant herein [was] charged with robbery first degree, assault [in the] first degree and kidnapping. Obviously, that evidence is relevant with respect to those counts. The court therefore finds that the probative value of this proffered evidence outweighs its prejudicial effect.”
Nowhere in its charge to the jury did the court suggest that the 911 call accredited or supported Marshall’s testimony. Rather, the court instructed the jury that “any conduct or statement of a witness which you find consistent with any other conduct or statement of that witness you may also consider in weighing the credibility of that witness.” Such credibility determinations factor into jury determinations about the relevance of
testimonial evidence. Moreover, the court explained that it found the 911 call relevant in establishing that a crime had occurred. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. ... So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Citations omitted; internal quotation marks omitted.)
State
v.
Bruno,
The defendant cites
State
v.
Suckley,
Because the recording tended to support the fact that a robbery had occurred, thе court acted within its discretion in admitting it. “All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.)
Jewett
v.
Jewett,
The tape also was not cumulative because it presented new material. “[I]f evidence presents new matter, it is obviously not cumulative with evidence previously received.” (Internal quotation marks omitted.) Id., 122. In Rodriguez, this court concluded that the trial court did not abuse its discretion in admitting a 911 recording because “[t]he prosecutor questioned [the witness] about the events leading to the call, then played the recording and questioned her about the events following the call.” Id., 123. Similarly, in this case, the recording of the 911 call presented matters not covered by Marshall’s testimony, such as the fact that Marshall was disoriented, the fact that Marshall was bleeding profusely and the nature of Labbe’s rescue of Marshall.
We conclude that the court did not abuse its discretion by permitting the jury to hear the recording of the 911 call.
IV
The defendant’s fourth claim is that the court improperly charged the jury that it could use out-of-court statements to accredit witness testimony. Specifically, the defendant alleges that the court’s instruction that the jury could consider witness testimony consistent with prior statements by the same witness allowed the jury to аccredit the statements Marshall made during the 911 call in violation of the Connecticut Code of Evidence.
The defendant did not preserve his claim at trial but seeks review under
State
v.
Golding,
“Evidentiary claims do not merit review pursuant to
State
v.
Golding,
[supra,
V
The defendant’s final claim is that the рrosecutor improperly commented on the 911 call during final argument to the jury. The defendant alleges that the prosecutor aroused the passions of the jury by describing Marshall’s ordeal as an “unimaginable horror” and that he vouched for the veracity of Marshall’s statements by reminding the jury that Marshall identified the defendant during the 911 call. We disagree.
Our Supreme Court has established an analytical framework for reviewing cases involving alleged prose-cutorial impropriety
7
to which no objection was raised at trial. See
State
v.
Stevenson,
“[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety]
has occurred, the reviewing 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. . . . Thus,
It is well established that “a prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument. ... 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.” (Internal quotation marks omitted.)
State
v.
Ceballos,
With these principles in mind, we turn to the defendant’s specific allegations of prosecutorial impropriеty during closing argument, noting that defense counsel raised no objection to the state’s rebuttal arguments. Although that fact is by no means dispositive of the defendant’s claim on appeal, we nevertheless consider it in reviewing the merits of an unpreserved claim of prosecutorial impropriety. See
State
v.
Skakel,
supra,
“As a general matter, a prosecutor may use any evidence properly admitted at trial.”
State
v.
Camacho,
supra,
During his rebuttal argument, the prosecutor in this case made the following statements: “I would submit tо you [that] when you listen to this tape, you’re not listening to someone who’s reflecting. What you’re listening to is a terrified, terribly emotional man who has just gone through an unimaginable horror. And he does identify [the defendant] on that tape, and he does so twice.” As we have noted, the recording of the 911 call was admitted as a full exhibit. Accordingly, it fell within the rule as previously explained under our case law that “[a]n exhibit offered and received as a full exhibit is in the case for all purposes.”
Merrill Lynch, Pierce, Fenner & Smith, Inc.
v.
Cole,
It is significant that the commеnts the defendant now complains of were made during the state’s rebuttal argument. We have held that where “[i]t is clear that the prosecutor merely was marshaling the evidence for the fact finder to consider when assessing the credibility of the witnesses . . . the prosecutor’s comments were not improper.”
State
v.
John M.,
Because we do not find it reasonably likely that the prosecutor’s comments confused the jury or prejudiced the defendant in this case, we conclude that the commentary at issue did not rise to the level of prosecutorial impropriety. “A prosecutor ... is permitted to comment upon the evidence presented at trial and to argue the inferences that the [fact finder] might draw therefrom . . . .” (Internal quotation marks omitted.) Id., 313. In this case, the prosecutor merely urged the jury to draw reasonable inferences from the facts. See
State
v.
Skakel,
supra,
Having rejected the defendant’s claim that the prosecutor’s comments about the 911 recording during closing argument constituted prosecutorial impropriety, we need not reach the issue of whether prosecutorial impropriety deprived the defendant of his due process right to a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument . . .
The court instructed the jury in relevant part: “In this [ninth] cоunt, [the state] must prove beyond a reasonable doubt, therefore, that when he made such agreement with another person, the defendant had the specific intent to wrongfully take property from Marshall and “to permanently deprive him of his property or to permanently appropriate it to himself or to a third person by the use of physical force, and he further intended that during the robbery he or another person would use a dangerous instrument; to wit, a knife.”
The defendant additionally claims that the court improperly ruled that the 911 tape was admissible as a nontestimonial statement. Even if Marshall’s statements were testimonial, as the defendant suggests, their admission would not be barred by the confrontation clause, which “does not bar admission of a statement so long as the declarant is present at trial to defend оr explain it.”
Crawford
v.
Washington,
The tape of the 911 call was admitted as a full exhibit and states:
“[911 Operator]: . . . May I help you?
“[Marshall]: Yes, I’ve been tied up and robbed. I’m at Granby Street. Please send help.
“[911 Operator]: Where are you?
“[Marshall]: Granby Street behind a school somewhere. . . . They said I’m on Granby Street. I’m still tied up, behind a high school. I think they said something like weave. Help.
“[911 Operator]: You’re outside?
“[Marshall]: They locked me up in my car.
“[911 Operator]: They locked you up in your car?
“[Marshall]: Please send help quick.
“[911 Operator]: Who locked you up in your car?
“[Marshall]: Four men. . . .
“[911 Operator]: Four men. Do you know them?
“[Marshall]: No.
“[911 Operator]: Did they assault you in any way?
“[Marshall]: Yes, they burned and cut me. . . .
“[911 Operator]: You’re bleeding from what part of your body?
“[Marshall]: My head.
“[911 Operator]: Your head?
“[Marshall]: It’s all over my face and my head right now. Please send help.
“[911 Operator]: What is your name?
“[Marshall]: My name is Lincoln. . . .
“[911 Operator]: And do you know any of these men that did this to you?
“[Marshall]: No, but—no, please help. Help.
“[911 Operator]: How long have you been out there?
“[Marshall]: I’ve been—they’ve been driving me around five, six hours now. I don’t know.
“[911 Operator]: What kind of car are you in?
“[Marshall]: A blue X-5.
“[911 Operator]: In a blue X-5?
“[Marshall]: Yes.
“[911 Operator]: Is that your vehicle?
“[Marshall]: Yes.
“[911 Operator]: Where do you live?
“[Marshall]: I live in Wethersfield.
“[911 Operator]: In Wethersfield. Do you want to stay on the phone with me until I get officers there?
“[Marshall]: Yes. Please hurry up.
“[911 Operator]: Okay. I will send the officers to you, and I will send an ambulance also. Okay?
“[Marshall]: Yes.
“[911 Operator]: And they took you from Wethersfield into Hartford or did it happen—
“[Marshall]: Yes.
“[911 Operator]: —you were in Wethersfield when they brought you into Hartford?
“[Marshall]: I couldn’t see anything. I’m trying. Oh God. They took the key to the van.
“[911 Operator]: These men, were they black, white or Hispanic?
“[Marshall]: Black. They were all black. I saw some of their faces and they were calling each other names. They have my Nextel phone. Maybe you can track it. . . .
“[911 Operator]: Whose phone are you using now?
“[Marshall]: My phone. I have two cell phones. . . .
“[911 Operator]: You met these people in Hartford?
“[Marshall]: No, they were at my apartment waiting for me.
“[911 Operator]: Where do you live ... in Wethersfield?
“[Marshall]: Yes. . . . Let me see. I’m trying to open the door.
“[911 Operator]: It’s very cold out there. Don’t open the car door.
“[Marshall]: I can’t see. Wait. I’m trying to see. I don’t see any name on this school.
“[911 Operator]: That’s Weaver High School if you’re on Granby Street.
“[Marshall]: It says Weaver [High School]. . . . Tell them there’s a van parked beside me, too.
“[911 Operator]: Okay. So, yоu’re parked on the side of Weaver High School, then, if you can see the name of the school?
“[Marshall]: No, I can see the—I can see the garbage can. Oh, gosh.
“[911 Operator]: Stay in your vehicle because it’s cold out there. Get back in your car. Are you back in your car?
“[Marshall]: Yes.
“[911 Operator]: Stay in there, please. There’s a cruiser on the way. I’m still here. ... I also got the ambulance and fire department on the way to help you.
“[Marshall]: Okay. I got the tape off my face. Oh, God. They burned me up real bad. Oh, God.
“[911 Operator]: And you’re bleeding 1'rom your face, you said?
“[Marshall]: They burned me with a knife in my head and they cut me— they burned me on my stomach. It just bums.
“[911 Operator]: They burned you with a knife?
“[911 Operator]: And you don’t know any of these guys?
“[Marshall]: Yeah ....
“[Marshall]: I recognize one of them because they duct taped my face and my eye. I could see one of them.
“[911 Operator]: Uh-huh.
“[Marshall]: And they called him—they called his name, too.
“[911 Operator]: What did they call him?
“[Marshall]: Sticky. . . .
“[911 Operator]: Sticky?
“[Marshall]: Yes.
“[911 Operator]: And they were driving your car, and then they took off.
“[Mаrshall]: They were driving—I seen the car that they came—
“[911 Operator]: What kind of car was it?
“[Marshall]: Acura Legend. I couldn’t see the license plate, but I know the street where they took me because I could see out of one of my eyes.
“[911 Operator]: And what color was the Acura?
“[Marshall]: I think it was either black or blue. It was real dark.
“¡911 Operator]: Dark. And you don’t recall any of the letters or the numbers on the plate?
“[Marshall]: I couldn’t see any. It was snowing still.
“[911 Operator]: So, this must have been five o’clock or six o’clock when they picked you up?
“[Marshall]: I’d say about six o’clock.
“[911 Operator]: About six o’clock. I have an officer there.
“[Marshall]: I don’t see any police. . . .
“[911 Operator]: Stay right there. Ihave officers there. They’re just looking for you at this point Okay. Anyway can you blow your horn?
“[Marshall]: Yes.
“[911 Operator]: He’s going to blow his horn so they can find him.
“[Marshall]: It’s not blowing.
“[911 Operator]: It’s not blowing?
“[Marshall]: No.
“[911 Operator]: Can your lights come on?
“[Marshall]: The lights are on.
“[911 Operator]: The lights are on. Can you flick them? Keep on flicking your lights. He’s flicking the lights because the horn is not working.
“[Marshall]: It’s facing, like, an apartment complex.
“[911 Operator]: You see an apartment complex?
“[Marshall]: Yeah, it’s across. . . . It’s an apartment complex across from the high school. . . . I’m trying to go-—
“[911 Operator]: Don’t go anywhere. Stay right there. Stay in your car. Don’t go anywhere. Are you back in your car?
“[Marshall]: I’m getting back in there.
“[911 Operator]: Please get back in your car. The weather is not in no condition for you to walk anywhere. Are you flicking your lights now? Is he in the back of Weaver? Lincoln? Hello? Hello? I lost him. . . .”
Under
State
v.
Golding,
“The use of the term ‘prosecutorial impropriety,’ when reviewing allegedly improper statements by a prosecutor at trial, is more appropriate than the traditional term of ‘prosecutorial misconduct’ . . . (Citation omitted.)
State
v.
Fauci,
“In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, we focus on several factors: (1) the extent to which the [impropriety] was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the [impropriety] to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.”
State
v.
Williams,