Under Edwards, the police can take fingernail samples incident to arrest even if a defendant has been in jail for several hours. State v. Magnotti, 502 A.2d 404, 407 (Conn. 1985). "A warrantless seizure of . . . the fingernail clippings . . . was reasonable under the facts of this case to protect possible evidence connected with the foul deeds."
(Internal quotation marks omitted.)); State v. Magnotti , 198 Conn. 209, 220, 502 A.2d 404 (1985) (prosecutor's rhetorical question asking jurors " โ[w]hat about the [d]efense's case?โ " was "a comment by the prosecutor on the overall quality of the defendant's evidence" and did not "[call] specific attention to the failure of the accused to testify").
The prosecutor was entitled to comment on the quality of the evidence supporting this claim. See State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985) (defendant, "by his failure to testify, cannot insulate himself from general comment on the weakness of his case, even though his failure so to testify may be perceived by the jury as having contributed to the general weakness about which comment is made"). For the same reason, the defendant's claim that the prosecutor misled the jury by discounting possible innocent explanations for the fingerprint is also unavailing. The prosecutor acknowledged the evidence that the tissue box had been publicly available in the store where it had been purchased, and merely pointed out that there was no evidence that the defendant had ever been in the store.
" (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 173, 778 A.2d 955 (2001); State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985). "As we repeatedly have stated, [i]n determining whether a prosecutor's comments have encroached upon a defendant's [ fifth amendment] right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?"
Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); see also General Statutes ยง 54-84. In State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985), "[w]e . . . recognize[d] that 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. . . . We regard[ed] the challenged remark as a comment by the prosecutor on the overall quality of the defendant's evidence and not as calling specific attention to the failure of the accused to testify.
Id. The prosecutor's comment in this case merely highlighted the weakness of St. John's testimony, which related only to the years 1986 through 1990, in support of the defense of diminished mental capacity in 1994, the year that the crime in this case occurred. It was a proper comment on the weight of that evidence. Cf. State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985) (asking "`[w]hat about the [d]efense's case'" was "a comment . . . on the overall quality of the defendant's evidence and [did not call] specific attention to the [defendant's] failure . . . to testify"). Commenting on the weight of the evidence and the weakness of the defendant's case constitutes proper argument.
Thus, "[i]t is one thing to prevent the state from making capital of the defendant's invocation of the constitutional privilege but quite another to say that an accused who avails himself of it is entitled to impose on the prosecution shackles that would be unavailable to a man who testifies in his own defense." Id.; see also State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985) ("[t]he accused, by his failure to testify, cannot insulate himself from general comment on the weakness of his case, even though his failure so to testify may be perceived by the jury as having contributed to the general weakness about which comment is made"). Furthermore, the "naturally and necessarily" test finds support in the realization that "closing arguments of counsel . . . are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear.
(Internal quotation marks omitted.) State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985); State v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983). General Statutes ยง 54-84 provides in relevant part: "Testimony or silence of accused.
We conclude that the state's attorney was not commenting on the defendant's refusal to testify, but rather, on the weight to be afforded the defendant's statements to the police. See State v. Negron, supra, 221 Conn. 325 (challenged remark a comment on defendant's statements to three others); State v. Magnotti, 198 Conn. 209, 220, 502 A.2d 404 (1985) (comment on "overall quality of the defendant's evidence"). We find no merit to the defendant's claim.
(Internal quotation marks omitted.) State v. Magnotti, 198 Conn. 209, 213, 502 A.2d 404 (1985); State v. Guertin, supra, 190 Conn. 446. "Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed." State v. Cobuzzi, supra, 376; State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990).