"Under the plain error doctrine, we may reverse a criminal conviction when prosecutorial misconduct has so pervade[d] the defendant's trial as to have impaired the effectiveness or integrity of the judicial process." State v. Satchwell, 244 Conn. 547, 556 n. 13, 710 A.2d 1348 (1998); State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996). The defendant's statutory claim was not preserved at trial.
(Internal quotation marks omitted.) State v. Satchwell , 244 Conn. 547, 575, 710 A.2d 1348 (1998). "[B]ecause of the difficulties inherent in this balancing process ... every reasonable presumption should be given in favor of the trial court's ruling.... Of course, [a]ll adverse evidence is damaging to one's case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.... [Accordingly] [t]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the [party against whom the evidence is offered] but whether it will improperly arouse the emotions of the jur[ors]."
As we previously have noted, defense counsel's failure to object to the allegedly improper argument when it was made indicates that counsel did not consider it to be unfair or seriously prejudicial in light of the record of the case at the time. E.g., State v. Andrews, supra, 248 Conn. 19-20; see State v. Satchwell, 244 Conn. 547, 565, 710 A.2d 1348 (1998). When the reference to the autopsy photographs is viewed in the broader context of the entire penalty phase hearing, we are convinced that it did not so taint that hearing as to render it unfair.
” (Citations omitted; internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 560–61, 710 A.2d 1348 (1998). With these legal principles in mind, we turn to whether this claim is reviewable under Golding.
State v. Brunetti , supra, 279 Conn. at 63, 901 A.2d 1. Because it is the function of the trial court, not this court, to make factual findings; see, e.g., State v. Satchwell , 244 Conn. 547, 562, 710 A.2d 1348 (1998) ; the defendant was required to clarify the record as to whether someone other than Przech conducted the retesting in 2016. Because the facts revealed by the record are inadequate to establish whether the alleged constitutional violation did, in fact, occur, we conclude that the defendant's claim fails under the first prong of Golding , and, thus, we decline to review it.
Greene v. Commissioner of Correction , 330 Conn. 1, 15, 190 A.3d 851 (2018), cert. denied sub nom. Greene v. Semple , ––– U.S. ––––, 139 S. Ct. 1219, 203 L. Ed. 2d 238 (2019) ; accord State v. Satchwell , 244 Conn. 547, 561, 710 A.2d 1348 (1998) ; see also State v. Cohane, supra, 193 Conn. at 498, 479 A.2d 763 ("[t]he responsibility of the state's attorney to conduct the prosecution in accordance with constitutional fair trial standards ... cannot be defined or limited by the precise contours of the perjury statute"). "This strict standard of materiality is appropriate in such cases not just because they involve prosecutorial [impropriety], but more importantly because they involve a corruption of the [truth seeking] function of the trial process....
" (Internal quotation marks omitted.) State v. Ouellette , 295 Conn. 173, 186, 989 A.2d 1048 (2010) ; see also State v. Satchwell , 244 Conn. 547, 560–61, 710 A.2d 1348 (1998). Our review of Kelly's testimony during the underlying criminal trial reveals that the petitioner has taken Kelly's testimony about his agreement with the state out of context.
The “naturally and necessarily” standard has been limited to this particular concern and not extended to other alleged impropriety in argument. See, e.g., State v. Grant, 286 Conn. 499, 537–47, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008); State v. Rowe, 279 Conn. 139, 144–61, 900 A.2d 1276 (2006); State v. Satchwell, 244 Conn. 547, 563–72, 710 A.2d 1348 (1998); State v. Crump, 145 Conn.App. 749, 754–61, 75 A.3d 758, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013); State v. Johnson, 107 Conn.App. 188, 199–202, 944 A.2d 416, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008); State v. Palmer, 78 Conn.App. 418, 423–28, 826 A.2d 1253, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003). The question, therefore, is what is the proper approach when a prosecutor's remarks are susceptible to more than one interpretation, one of which is improper. For the reasons previously stated, the inquiry must focus on the jury's perception of the remarks and not the prosecutor's intention in making them.
The "naturally and necessarily" standard has been limited to this particular concern and not extended to other alleged impropriety in argument. See, e.g., State v. Grant, 286 Conn. 499, 537-47, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008); State v. Rowe, 279 Conn. 139, 144-61, 900 A.2d 1276 (2006); State v. Satchwell, 244 Conn. 547, 563-72, 710 A.2d 1348 (1998); State v. Crump, 145 Conn. App. 749, 754-61, 75 A.3d 758, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013); State v. Johnson, 107 Conn. App. 188, 199-202, 944 A.2d 416, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008); State v. Palmer, 78 Conn. App. 418, 423-28, 826 A.2d 1253, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003). --------
The “naturally and necessarily” standard has been limited to this particular concern and not extended to other alleged impropriety in argument. See, e.g., State v. Grant, 286 Conn. 499, 537–47, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 200 (2008); State v. Rowe, 279 Conn. 139, 144–61, 900 A.2d 1276 (2006); State v. Satchwell, 244 Conn. 547, 563–72, 710 A.2d 1348 (1998); State v. Crump, 145 Conn.App. 749, 754–61, 75 A.3d 758, cert. denied, 310 Conn. 947, 80 A.3d 906 (2013); State v. Johnson, 107 Conn.App. 188, 199–202, 944 A.2d 416, cert. denied, 288 Conn. 905, 953 A.2d 650 (2008); State v. Palmer, 78 Conn.App. 418, 423–28, 826 A.2d 1253, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003). The question, therefore, is what is the proper approach when a prosecutor's remarks are susceptible to more than one interpretation, one of which is improper.