Donald G. v. Commissoner of Correction

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 DONALD G. v. COMMISSIONER
OF CORRECTION*
(AC 45422)
Bright, C. J., and Alvord and DiPentima, Js.

Syllabus

The petitioner, who had been convicted of several crimes in connection
with two incidents in which he sexually assaulted the minor victim, C,
sought a writ of habeas corpus. He claimed that K, his appellate counsel,
had rendered ineffective assistance by failing to raise claims of prosecu-
torial impropriety and a violation of Brady v. Maryland (373 U.S. 83)
that resulted from the state’s failure to disclose to the defense a complete
copy of notes made by a police detective, Y, who had interviewed the
petitioner about C’s allegations. During the petitioner’s criminal trial, C
testified that she, her friend, and her sister had gone to the petitioner’s
workplace to help him paint the interior of the building. C went upstairs
to paint an office while her friend and her sister remained downstairs.
The petitioner entered the office and sexually assaulted C. Y testified
on direct examination that the petitioner had told him that two girls,
in addition to C, helped him paint that day. Defense counsel then cross-
examined Y, and, during a recess, the prosecutor provided defense
counsel with an incomplete copy of Y’s notes. Y then admitted on cross-
examination that the notes were inconsistent with his initial testimony
about the number of girls present that day. Subsequent to his criminal
trial, the petitioner obtained a complete copy of Y’s notes through the
Freedom of Information Act (§ 1-200 et seq.). The habeas court rendered
judgment denying the habeas petition, from which the petitioner, on
the granting of certification, appealed to this court. Held:
1. The petitioner’s claim that K rendered ineffective assistance was unavail-
ing, as the petitioner could not establish that he was prejudiced by K’s
failure on direct appeal to raise claims of prosecutorial impropriety and
a violation of Brady:
a. Notwithstanding the habeas court’s erroneous determination that the
petitioner’s habeas petition did not allege claims of ineffective assistance
concerning the Brady claim and the prosecutor’s comment during closing
argument to the jury that the petitioner had told Y ‘‘some BS’’ about his
conduct with C, and thus it improperly failed to consider those claims,
this court reviewed those claims on their merits, as a remand to the
habeas court for its consideration of those claims was unnecessary, the
parties having fully briefed the claims and agreed that the underlying
facts were not in dispute and that the record was adequate for review
by this court.
b. Although the respondent, the Commissioner of Correction, conceded
that the state had failed to provide defense counsel with a complete
copy of Y’s notes and did not dispute that the notes were favorable to
the defense, the petitioner failed to establish that the notes were material
to his defense within the meaning of Brady: because Y admitted that
the incomplete copy of his notes did not indicate that the petitioner had
told him that multiple girls in addition to C were present during the
painting incident, which the petitioner contended would have discredited
C’s testimony and corroborated other testimony that only one girl other
than C was present, any additional support would have been minimal,
as defense counsel achieved the same result with the incomplete copy of
Y’s notes as he would have with a complete copy of the notes; moreover,
despite the petitioner’s contention that C’s testimony was central to the
state’s case and that his ability to cast doubt on her truthfulness was
paramount to establishing reasonable doubt, even though a complete
copy of Y’s notes may have lent support to defense counsel’s impeach-
ment of Y and C, it could not be said that there existed a reasonable
probability that further impeachment of Y using a complete copy of his
notes would have altered the outcome of the criminal trial.
c. There was no merit to the petitioner’s assertion that K rendered
ineffective assistance by failing to claim that the prosecutor improperly
commented to the jury that the petitioner had told Y ‘‘some BS’’ about
 having ‘‘wrestl[ed]’’ with C and slapping her on the ‘‘butt’’: although the
prosecutor’s use of ‘‘BS’’ was inartful and unnecessary, the remark was
a fair comment on the evidence, as Y had testified that the petitioner
appeared to be very nervous when Y confronted him with C’s accusations,
and the prosecutor’s suggestion that the petitioner had lied to Y about
the painting incident constituted proper argument from which the jury
was asked to infer that C’s version of the events was true and that the
petitioner’s was not.
2. The habeas court properly concluded that K acted reasonably in deciding
not to raise claims of prosecutorial impropriety regarding the prosecu-
tor’s use of the term ‘‘victim’’ when referring to C during trial and his
remark that C’s sister was in the courtroom during closing argument
to the jury:
a. Although the criminal court had ordered the parties not to refer to C
as the ‘‘victim’’ during trial, which both parties thereafter violated, the
petitioner could not prevail on his claim that the prosecutor’s use of
that term six times gave rise to a claim of prosecutorial impropriety that
K improperly failed to raise on direct appeal: this court concluded, after
applying the factors set forth in State v. Williams (204 Conn. 523), that
the prosecutor’s sporadic use of the terms ‘‘victim’’ and ‘‘victimization’’
was not blatantly egregious or so frequent or severe as to deprive the
petitioner of a fair trial, as the prosecutor properly referred to C numerous
times as ‘‘the complainant,’’ ‘‘the complaining witness’’ or by her initials
during a trial that lasted five days and culminated in hundreds of pages
of transcript; moreover, although the court did not give the jury specific
curative instructions, the court repeatedly instructed the jury not to
consider the statements and arguments of counsel as evidence, which
the jury is presumed to have followed; furthermore, the prosecutor’s
acknowledgment to the jury that the state had the burden of proving
the petitioner’s guilt beyond a reasonable doubt, along with the jury’s
verdict of not guilty on one of two counts of sexual assault in the first
degree with which the petitioner had been charged, made it especially
unlikely that the jury was unduly influenced by the prosecutor’s inappro-
priate references to C as the victim.
b. The petitioner failed to prove that a reasonable probability existed
that he would have prevailed in his criminal appeal had K raised a
claim that the prosecutor improperly remarked that C’s sister was in
the courtroom during closing argument to the jury: reasonably competent
counsel may not have interpreted the prosecutor’s ambiguous remark
as giving rise to a valid claim of prosecutorial impropriety, and, even if
K had argued that the prosecutor’s remark was improper, that argument
was unlikely to have succeeded, as it had minimal, if any, prejudicial
effect in that the only new information it suggested was that C’s sister,
who did not testify during the trial, was a real person and was present
during the trial; moreover, it was only the sister’s presence during the
painting incident that was disputed at trial, and the prosecutor’s knowl-
edge of her presence during trial would not corroborate C’s testimony
that her sister was present during the painting incident; furthermore,
the lack of an objection by defense counsel suggested that counsel
believed the statement was not so severe that it risked depriving the
petitioner of a fair trial, the prosecutor having made the statement
only once.
Argued September 19, 2023—officially released March 5, 2024

Procedural History

Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district of
Tolland and tried to the court, Oliver, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (petitioner).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Margaret E. Kelley,
state’s attorney, and Angela R. Macchiarulo, supervi-
sory assistant state’s attorney, for the appellee (respon-
dent).
 Opinion

BRIGHT, C. J. In this certified appeal, the petitioner,
Donald G., appeals from the judgment of the habeas
court denying his petition for a writ of habeas corpus.
He claims that the court improperly (1) failed to con-
sider two of his claims of ineffective assistance of appel-
late counsel and (2) concluded that his appellate coun-
sel did not render ineffective assistance by failing to
raise claims of prosecutorial impropriety on direct
appeal from the petitioner’s criminal conviction. We
affirm the judgment of the habeas court.
On the basis of the evidence presented at the petition-
er’s criminal trial, the jury reasonably could have found
the following facts, as set forth by this court in the
petitioner’s direct appeal. ‘‘The minor victim . . . is
the niece of the [petitioner]. In the time period between
May and October, 2003, when the victim was age ten
or eleven, she, along with her sister and her friend,
went to the [petitioner’s] workplace to help him paint
the interior of the building. The victim went upstairs to
paint the office while her sister and her friend remained
downstairs. The [petitioner] entered the office,’’ where
he sexually assaulted the victim. State v. Donald H. G.,
148 Conn. App. 398, 400, 84 A.3d 1216, cert. denied, 311
Conn. 951, 111 A.3d 881 (2014). ‘‘The [petitioner] later
took the victim’s sister and the victim’s friend home,
but he returned to his workplace with the victim where
he continued to sexually assault her . . . . On the basis
of these facts, [hereinafter referred to as the 2003 inci-
dent] the state charged the [petitioner] with one count
of sexual assault in the first degree and two counts of
risk of injury to a child.’’ Id., 401. The state also charged
the petitioner with (1) one count of sexual assault in
the third degree and one count of risk of injury to a
child in connection with an incident involving the victim
at a 2007 Christmas party hosted by her family and
(2) one count of sexual assault in the first degree in
connection with another incident involving the victim
at a 2008 Christmas party hosted by her family. Id.,
401–402.
‘‘On July 2, 2009, the victim, while staying with a
friend’s family due to a deterioration in her relationship
with her family, confided in her friend’s mother that
the [petitioner] repeatedly had sexually abused her. A
few days later, the friend’s mother drove the victim to
the police station to report the sexual abuse. The victim
made further disclosures to the police on August 27,
2009, and September 5, 2009.
‘‘The [petitioner] was arrested and charged, by way
of an amended information, with two counts of sexual
assault in the first degree, one count of sexual assault
in the third degree, and three counts of risk of injury
to a child. The jury found the [petitioner] guilty of all
charges with the exception of the count of sexual
assault in the first degree that stemmed from the 2008
Christmas party incident, for which the jury returned
a verdict of not guilty. The court accepted the jury’s
verdict, rendered judgment of conviction on five counts,
and imposed a total effective sentence of thirty years
[of] incarceration, ten years of which were mandatory,
followed by five years of parole with special conditions,
and lifetime registration as a sexual offender.’’ Id., 402–
403.
The petitioner appealed from his conviction, claiming
that ‘‘(1) the court erred in allowing the state to intro-
duce evidence of uncharged misconduct, (2) the court
erred when it refused to conduct an in camera review
of the victim’s psychological records, (3) the court’s
improper response to a question posed by the jury dur-
ing its deliberations deprived him of a fair trial, and
(4) the prosecutor committed prejudicial impropriety
during closing and rebuttal argument.’’1 Id., 400. This
court rejected the petitioner’s claims and affirmed the
judgment of conviction. Id. The petitioner was repre-
sented in his direct appeal by Attorney W. Theodore
Koch III.
Thereafter, the petitioner filed his first petition for a
writ of habeas corpus, claiming that his trial counsel,
Attorney Robert A. Lacobelle (defense counsel), pro-
vided ineffective assistance in that he (1) failed to call
four witnesses in support of an alibi defense, (2) alleg-
edly had a conflict of interest, (3) improperly referred
to the complainant as the ‘‘victim’’ during trial and failed
to object or request a curative instruction when the
prosecutor did the same, and (4) failed to adequately
investigate an alleged incident of uncharged miscon-
duct that the state introduced at trial. After a trial on
the merits, the court, Kwak, J., denied the petition. See
Donald G. v. Commissioner of Correction, 203 Conn.
App. 58, 63, 247 A.3d 182, cert. denied, 337 Conn. 907,
253 A.3d 45 (2021). The petitioner subsequently filed a
petition for certification to appeal, which the habeas
court granted. Id. This court affirmed the judgment, and
our Supreme Court denied the petitioner’s subsequent
petition for certification to appeal. See Donald G. v.
Commissioner of Correction, 337 Conn. 907, 253 A.3d
45 (2021).
In 2017, the self-represented petitioner initiated the
present habeas action, claiming that Koch had rendered
ineffective assistance. On May 24, 2021, the petitioner
filed the operative petition—his second amended peti-
tion. In the operative petition, the petitioner raised ten
separate ‘‘grounds’’ for relief, only three of which are
relevant to the present appeal. First, the petitioner
claimed in ‘‘ground three’’ that Koch rendered ineffec-
tive assistance by failing to raise on direct appeal a
claim that the petitioner was prejudiced by the prosecu-
tor’s and defense counsel’s references to the complain-
ant as the ‘‘victim’’ during trial in violation of a court
order. Second, the petitioner alleged in ‘‘ground nine’’
that the prosecutor had improperly identified in the
trial audience the third girl whom the victim had testi-
fied was present during the 2003 incident and improp-
erly made a comment during closing argument that
implied that the petitioner had lied to Detective Steven
Young when Young interviewed him about the 2003
incident. The petitioner also alleged that the state’s
failure to provide the defense with a complete copy of
Young’s notes from that interview regarding the number
of girls on the scene of the 2003 incident violated his
right to confrontation and constituted a violation of
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963). The petitioner then alleged in
‘‘ground ten’’ that Koch performed deficiently by ‘‘failing
to raise the significant [and] obvious claims described
in ground nine . . . [on] direct appeal over issues actu-
ally raised’’ and that Koch’s deficient performance prej-
udiced him.
The respondent, the Commissioner of Correction, left
the petitioner to his proof on grounds three and ten
and raised several affirmative defenses to ground nine,
including that the petitioner had failed to state a claim
on which relief could be granted, that he had procedur-
ally defaulted on that claim and that he was barred
from raising it by the doctrine of res judicata, all of
which the petitioner denied in his reply.
The habeas court, Oliver, J., held a one day trial on
July 26, 2021, during which the petitioner represented
himself with the assistance of court-appointed standby
counsel. The petitioner presented the testimony of Koch
and the prosecutor from his criminal trial, Attorney
Charles M. Stango Following trial, the petitioner filed
a brief, and the respondent filed a notice that he would
not file a posttrial brief because the petitioner had failed
to proffer any evidence in support of his claims. On
January 20, 2022, the court issued a memorandum of
decision, in which it rejected the respondent’s affirma-
tive defenses but nevertheless denied the petitioner’s
habeas petition due to his failure to prove his claims.
This certified appeal followed. Additional facts will be
set forth as necessary.
On appeal, the petitioner claims that the habeas court
improperly (1) failed to review his claims that Koch
had rendered ineffective assistance by not raising a
Brady claim and a claim that the prosecutor had
improperly stated during closing argument to the jury
that the petitioner had lied to a police detective, and
(2) concluded that the petitioner’s right to effective
assistance of appellate counsel was not violated when
Koch failed to raise two other claims of prosecutorial
impropriety on direct appeal. We address each claim
in turn.
I
 The petitioner first claims that the habeas court erro-
neously concluded that the operative petition did not
allege that Koch rendered ineffective assistance by fail-
ing to raise (1) a Brady claim arising out of the state’s
suppression of a complete copy of Young’s notes and
(2) a prosecutorial impropriety claim relating to the
prosecutor’s statement during rebuttal argument to the
jury that the petitioner had ‘‘told Detective Young some
BS,’’ and that the court thus improperly failed to con-
sider those claims. We agree with the petitioner, but
because we conclude that both claims would have failed
on their merits had Koch raised them on direct appeal,
the court’s error was harmless.
A
The following additional facts, as undisputed in the
record, and procedural history inform our analysis. In
its memorandum of decision denying the habeas peti-
tion, the habeas court interpreted the operative petition
as ‘‘[raising] a single claim of ineffective assistance of
appellate counsel . . . premised on ten alleged
grounds of deficient performance for failure to raise
claims on appeal.’’ The court addressed each of the
ten grounds using the four groupings set forth in the
petition: ‘‘First (grounds one, two, and three), allega-
tions related to the use of the term ‘victim’ by both the
prosecutor and defense counsel; second (grounds four,
five, and six), allegations related to the state’s use of
the petitioner’s request for counsel as consciousness
of guilt evidence; third (grounds seven and eight), alle-
gations related to collusion between the prosecutor
and defense counsel to sabotage the petitioner’s alibi
defense and mislead the jury; and fourth (grounds nine
and ten), allegations related to improprieties when [the
prosecutor] pointed to an individual in the public gallery
of the courtroom to bolster the complainant’s testimony
and discredit the defense.’’ The court’s memorandum
of decision lacks any reference to either a Brady claim
or a claim of prosecutorial impropriety based on the
prosecutor’s statement to the jury that the petitioner
had told Young ‘‘some BS.’’
On September 28, 2022, the petitioner filed a motion
for articulation, requesting that the habeas court
address his claims that ‘‘Koch rendered ineffective
assistance . . . when he (1) failed to raise and litigate
a claim that the petitioner’s right to due process and a
fair trial, pursuant to Brady and its progeny, was vio-
lated when the state failed to disclose material exculpa-
tory evidence; and (2) that the petitioner’s right to due
process was violated by certain improprieties during
the prosecutor’s closing argument.’’ The respondent
filed an opposition to the petitioner’s motion for articu-
lation, arguing that the petitioner was ‘‘attempting to
raise new claims not adequately [pleaded] in his habeas
petition . . . .’’ The court denied the petitioner’s
motion for articulation on October 19, 2022.
 The petitioner then filed with this court a motion for
review of the habeas court’s denial of his motion for
articulation, requesting that this court order the habeas
court to respond to the questions posed in the motion
for articulation. The respondent opposed the motion
for review, again arguing that the motion for articulation
‘‘improperly tried to compel the habeas court to decide
claims that the petitioner had not adequately or clearly
[pleaded] in his operative habeas petition.’’ This court
granted the petitioner’s motion for review but denied
the relief requested therein; however, we ordered, sua
sponte, that the habeas court ‘‘shall articulate (1)
whether it found that the petitioner pleaded in [the
operative petition] that appellate counsel was ineffec-
tive for failing to raise a Brady claim with respect to
. . . Young’s notes, and the factual and legal basis
therefor; (2) whether it found that the petitioner
pleaded in [the operative petition in paragraph 97 (b)
through (f)] that appellate counsel was ineffective for
failing to argue on direct appeal that [the prosecutor]
made several improper remarks in his closing statement
at the petitioner’s underlying criminal trial regarding
both his time and experience as a prosecutor, as well
as his personal opinion concerning the testimony
offered at the criminal trial, and the factual and legal
basis therefor; and (3) if the court did find that the
petitioner pleaded [those] claims concerning ineffective
assistance of appellate counsel, the court’s decision
thereon.’’
The habeas court addressed these issues in an articu-
lation on January 30, 2023. As to the first issue, the court
explained that ‘‘[t]he focus of the petitioner’s assertions
was the prosecutor pointing out someone in the court-
room while arguing how many others were with . . .
the victim at the garage. . . . Ground ten contains the
allegation that Koch was ineffective for the reasons
described in ground nine. . . . [A] fair reading of
ground nine is that it alleges an instance of prosecutorial
impropriety’’ rather than a Brady violation. (Citations
omitted.) According to the court, the petitioner raised
the Brady claim ‘‘for the first time’’ in his posttrial brief,
contrary to the well established principle that a claim
cannot be raised for first time in a posttrial brief. As
to the second issue, the court concluded that the asser-
tions in ‘‘paragraph 97 (b) through (f) [of the operative
petition] themselves were not claims of prosecutorial
improprieties’’ but, instead, ‘‘were examples of how the
prosecutor’s closing arguments tried to reconcile [the
victim’s] saying two other girls were there [with]
Young’s testimony.’’2 (Emphasis omitted.)
B
On appeal, the petitioner claims that ground nine of
the operative petition alleged a Brady claim relating to
the state’s suppression of Young’s notes and a prosecu-
torial impropriety claim relating to the prosecutor’s
‘‘BS’’ comment, and that ground ten alleged that Koch
rendered ineffective assistance by failing to raise these
claims on appeal. According to the respondent, the peti-
tioner’s references to Brady and the prosecutor’s state-
ment served as additional support for the petitioner’s
claim that the prosecutor had improperly identified the
victim’s sister in the courtroom ‘‘but did not, in them-
selves, constitute freestanding bases upon which to
base a claim of ineffective assistance.’’ We agree with
the petitioner.
The following standard of review and legal principles
guide our analysis. ‘‘[T]he interpretation of pleadings
is always a question of law for the court . . . . Our
review of the [habeas] court’s interpretation of the
pleadings therefore is plenary.’’ (Internal quotation
marks omitted.) Boone v. William W. Backus Hospital,
272 Conn. 551, 559, 864 A.2d 1 (2005). ‘‘[I]t is the estab-
lished policy of the Connecticut courts to be solicitous
of [self-represented] litigants and when it does not inter-
fere with the rights of other parties to construe the
rules of practice liberally in favor of the [self-repre-
sented] party. . . . The modern trend . . . is to con-
strue pleadings broadly and realistically, rather than
narrowly and technically. . . . The courts adhere to
this rule to ensure that [self-represented] litigants
receive a full and fair opportunity to be heard, regard-
less of their lack of legal education and experience
. . . . This rule of construction has limits, however.
Although we allow [self-represented] litigants some lati-
tude, the right of self-representation provides no atten-
dant license not to comply with relevant rules of proce-
dural and substantive law. . . . A habeas court does
not have the discretion to look beyond the pleadings
and trial evidence to decide claims not raised. . . . In
addition, while courts should not construe pleadings
narrowly and technically, courts also cannot contort
pleadings in such a way so as to strain the bounds
of rational comprehension.’’ (Internal quotation marks
omitted.) Mourning v. Commissioner of Correction,
120 Conn. App. 612, 624–25, 992 A.2d 1169, cert. denied,
297 Conn. 919, 996 A.2d 1192 (2010). ‘‘[T]he complaint
must be read in its entirety in such a way as to give
effect to the pleading with reference to the general
theory upon which it proceeded, and do substantial
justice between the parties.’’ (Internal quotation marks
omitted.) Boone v. William W. Backus Hospital,
supra, 560.
Mindful of these principles, we interpret the allega-
tions set forth in grounds nine and ten of the operative
petition as alleging that Koch rendered ineffective assis-
tance by failing to raise several claims on direct appeal,
including both a Brady claim and a claim that the prose-
cutor improperly argued to the jury that the petitioner
‘‘told Detective Young some BS.’’ In ground nine of
the operative petition, although the subheading for that
ground focuses only on the prosecutor’s identification
of the sister in the courtroom, the petitioner also alleges
a Brady violation and five other instances of prosecu-
torial impropriety. Following a discussion of the testi-
mony relevant to the petitioner’s claim that the prosecu-
tor improperly identified the sister, the petition states
in relevant part: ‘‘Defense counsel [asked] the court for
a copy of [Young’s] notes, [but] he ‘never got those
notes.’ . . . The prosecutor made a copy of those . . .
notes and gave [it] to [defense counsel]. . . . [Young
checked] his notes and stated that it states her, another,
and then it’s cut off . . . . It wasn’t photocopied prop-
erly. . . . Young testified [the] next day but could not
be questioned [as] to [the] cut-off portion of his notes
due to the state’s failure . . . to turn over a complete
copy of them. . . . Denying the right to confrontation,
and a Brady violation for not turning over the requested
notes, as stated in the transcript.’’ (Citations omitted.)
After the discussion of the Brady claim, the petition also
alleges: ‘‘Prosecuting authority continued impropriety
serving to rehabilitate [the victim’s] and . . . Young’s
conflicting testimony in [paragraph 97] (b) through (f)
. . . (f) ‘He made a mistake [the petitioner] told . . .
Young some B.S.’ . . . (violated fifth amendment right
to remain silent, can only be confirmed or denied by
petitioner, injecting personal opinion, not in evidence
that petitioner was B.S.ing).’’ (Citations omitted.)
Ground nine concludes with the statement: ‘‘There is
a reasonable probability that, but for the prosecutorial
improprieties as described, individually [and]/or
cumulatively, the result of the petitioner’s criminal trial
would have been different and more favorable to the
petitioner. In the alternative, if only the [prosecutor] did
not become a key witness himself, unsworn, identifying
[the sister] in the trial audience, [i]t is reasonabl[y]
likely the trial outcome would have been different.’’
(Emphasis added.) Reading the petition broadly and
realistically, and considering it as a whole, we interpret
these statements as raising several claims of impropri-
ety related to the prosecutor’s conduct during the peti-
tioner’s criminal trial, including both a Brady claim and
a claim that the prosecutor improperly stated that the
petitioner had ‘‘told . . . Young some BS.’’
In ground ten of the operative petition, the petitioner
then alleges that Koch rendered ineffective assistance
by ‘‘failing to raise these significant [and] obvious
claims described in ground nine . . . [on] direct
appeal over issues actually raised.’’ (Emphasis added.)
Although, in relation to this argument, the petitioner
discusses in detail only the prosecutor’s identification
of the sister in the courtroom, the petitioner nonethe-
less concludes his discussion of ground ten by stating
that, ‘‘[t]here is a reasonable probability that, but for the
petitioner’s appellate counsel’s deficient performance
described, individually and/or cumulatively, the
results of the petitioner’s direct appeal would have been
different and more favorable to the petitioner.’’ (Empha-
sis added.) Therefore, when grounds nine and ten are
read together, the operative petition is reasonably inter-
preted as raising a claim of ineffective assistance of
appellate counsel arising from a failure to raise the
multiple claims of misconduct by the prosecutor dis-
cussed in ground nine, including, inter alia, a Brady
claim arising out of the state’s suppression of a com-
plete copy of Young’s notes and a prosecutorial impro-
priety claim arising from the prosecutor’s ‘‘BS’’ com-
ment.
Our conclusion as to the Brady issue is bolstered by
the habeas court’s apparent understanding during trial
that the petitioner was advancing a claim that Koch
rendered ineffective assistance for not raising a Brady
claim on appeal. During the habeas trial, as an offer of
proof concerning the prosecutor’s testimony, the peti-
tioner explained: ‘‘I’d like to have [the prosecutor] tes-
tify today to two exhibits of . . . Young’s handwritten
notes. Both [exhibits] will support my Brady violation
claim on page 18 of my petition. I subpoenaed [the
prosecutor] to testify [as] to what his reason was for
turning over the detective[’s] notes, handwritten notes
improperly photocopied . . . . [T]hat’s pretty much
what I want to talk to him about, to authenticate the
notes. And the appellate counsel should’ve raised a
Brady [claim] on appeal.’’ When the court asked the
petitioner where he raised that claim in the habeas
petition because ‘‘there is clearly . . . no Brady claim’’
from the court’s reading of the petition, the petitioner
referred the court to grounds nine and ten of the petition
and described the facts underlying the Brady claim.
Thereafter, the court confirmed its understanding that
the petitioner was ‘‘asserting an ineffective assistance
of appellate counsel [claim] for not bringing a Brady
claim relating to the miscopying or incomplete copying
of . . . Young’s notes.’’ Despite the respondent’s objec-
tion that ‘‘there’s absolutely no Brady claim’’ in the
petition, the court concluded that paragraph 94 of the
petition appeared to raise such a claim and subse-
quently allowed the petitioner to question the prosecu-
tor regarding Young’s notes, and indicated that the court
would review the trial transcript for defense counsel’s
cross-examination of Young regarding his notes.
Moreover, the petitioner did not abandon either
claim, as he questioned Koch regarding his decision not
to raise either the Brady or prosecutorial impropriety
claim on appeal and discussed both claims in his post-
trial brief. In particular, the petitioner’s posttrial brief
states that Koch rendered ineffective assistance by fail-
ing to raise a claim on appeal that the prosecutor had
identified the sister in the audience during his closing
argument and ‘‘used a Brady violation to sway the jurors
[that] she was that third person’’ present, along with
the victim and her friend at the time of the 2003 incident.
The petitioner further argued in his posttrial brief that
Koch performed deficiently by failing to raise claims
on appeal relating to the additional allegedly improper
remarks referenced in paragraphs 89 (a) and 97 (b)
through (f) of the habeas petition.
Therefore, we conclude that the habeas court errone-
ously determined that the operative petition did not
allege that Koch rendered ineffective assistance by (1)
failing to raise a Brady claim and (2) failing to raise a
prosecutorial impropriety claim relating to the prosecu-
tor’s statement that the petitioner had ‘‘told Young
some BS.’’
C
Our conclusion that the habeas court failed to con-
sider claims that were properly before it typically would
require that we remand the case to the habeas court
for its consideration of those claims. See Quint v. Com-
missioner of Correction, 99 Conn. App. 395, 403, 913
A.2d 1120 (2007). ‘‘This court need not remand the case
for the trial court’s decision on [an] issue [however]
. . . if it can be determined as a matter of law on the
record before us. . . . In other words, if the evidence
necessary for resolution is undisputed, then this court
can decide the issue as a matter of law without need
for a remand for factual findings.’’ (Citation omitted.)
Lopez v. William Raveis Real Estate, Inc., 343 Conn.
31, 57, 272 A.3d 150 (2022).
As to the petitioner’s Brady claim, the parties agreed
during oral argument before this court that the facts
relevant to the claim are not in dispute and that the
record is therefore adequate for this court to address
the merits of the claim on appeal. We agree that we
can address the Brady claim as a matter of law because,
given that the respondent’s appellate counsel conceded
during oral argument before this court that the evidence
was suppressed and does not dispute that the evidence
was favorable to the petitioner, the dispositive issue is
whether the suppressed evidence was material under
Brady. This is ‘‘a mixed question of law and fact subject
to plenary review, with the underlying historical facts
subject to review for clear error.’’ State v. Ortiz, 280
Conn. 686, 720, 911 A.2d 1055 (2006). Moreover, the
materiality inquiry is not about ‘‘what happened, based
on the evidence presented and the permissible infer-
ences drawn therefrom. The inquiry here is what would
or would not have happened if something that did not
happen had happened. We are as qualified as the
[habeas] court to evaluate the record and to make that
hypothetical determination.’’ (Internal quotation marks
omitted.) Id., 720–21 n.20; see also Williams v. Commis-
sioner of Correction, 221 Conn. App. 294, 304–305, 301
A.3d 1136 (2023) (‘‘[t]he test for materiality is whether
the suppressed evidence in the context of the entire
record creates a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different’’ (internal
quotation marks omitted)).
 Similarly, as to the petitioner’s prosecutorial impro-
priety claim, this court and our Supreme Court regularly
consider such claims in the first instance on direct
appeal. See, e.g., State v. Courtney G., 339 Conn. 328,
340 n.4, 260 A.3d 1152 (2021); State v. McLaren, 127
Conn. App. 70, 78–79, 15 A.3d 183 (2011); State v. Angel
T., 105 Conn. App. 568, 573 n.4, 939 A.2d 611 (2008),
aff’d, 292 Conn. 262, 973 A.2d 1207 (2009). Indeed, ‘‘a
claim of prosecutorial impropriety warrants review
even if the defendant fails to preserve it at trial . . . .’’
(Citations omitted.) State v. Schiller, 115 Conn. App.
189, 195, 972 A.2d 272, cert. denied, 293 Conn. 910, 978
A.2d 1113 (2009).
Here, given that the parties do not dispute that the
prosecutor made the ‘‘BS’’ comment during closing
argument and that Young testified regarding his conver-
sation with the petitioner, whether the prosecutor’s
comment constitutes impropriety requires only that we
apply the law governing prosecutorial impropriety
claims to the undisputed facts in the record. Our review
of this claim is therefore plenary. See State v. Jones,
135 Conn. App. 788, 802, 44 A.3d 848 (affording plenary
review to trial court’s conclusion that prosecutorial
impropriety occurred because it was ‘‘conclusion of law
based on [the trial court’s] review of the evidence and
the closing arguments and was not based on any find-
ings of fact’’), cert. denied, 305 Conn. 925, 47 A.3d
885 (2012).
Because both claims require only that we apply the
law to the undisputed facts in the record, and the parties
have fully briefed both claims on their merits before
this court, we are in as good a position to decide the
petitioner’s claims as the habeas court would be on
remand. Accordingly, this court properly may reach the
merits of the petitioner’s claims on appeal despite the
habeas court’s failure to address them. See Quint v.
Commissioner of Correction, supra, 99 Conn. App. 403
(‘‘[b]ecause the relevant facts are not in dispute . . .
and resolution of the petitioner’s [claims] requires only
the application of the law . . . to those undisputed
facts, this court properly may reach the merits of [the
petitioner’s claims] on appeal’’); see also State v. Don-
ald, 325 Conn. 346, 354–55, 157 A.3d 1134 (2017)
(despite trial court’s denial of motion to suppress with-
out making factual findings or elaborating on legal basis
for denial, record was adequate for review because
material facts were not in dispute and question of
whether court properly denied motion to suppress is
subject to plenary review). We thus turn to the merits
of those claims.
1
First, the petitioner argues that Koch rendered inef-
fective assistance by failing to raise a claim on direct
appeal that the state’s suppression of a complete copy
of Young’s notes constituted a Brady violation. We con-
clude that the petitioner cannot establish that he was
prejudiced by that failure and, accordingly, his ineffec-
tive assistance claim fails.
A petitioner cannot prevail on an ineffective assis-
tance claim if the underlying claim that he argues his
appellate counsel should have raised on appeal is with-
out merit. See Valentine v. Commissioner of Correc-
tion, 219 Conn. App. 276, 285, 289–90, 295 A.3d 973
(petitioner cannot satisfy performance prong of Strick-
land v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), if issues not raised by appellate
counsel lack merit, and Strickland’s prejudice prong
requires reviewing court to analyze merits of underlying
claimed error in accordance with appropriate appellate
standard for measuring harm), cert. denied, 348 Conn.
913, 303 A.3d 602 (2023). Accordingly, to assess whether
Koch rendered ineffective assistance by failing to raise
a Brady claim on appeal, we turn to the merits of
that claim.
‘‘[T]he respective roles of the habeas court and the
reviewing court are . . . the same under Strickland as
they are under Brady. As a general matter, the underly-
ing historical facts found by the habeas court may not
be disturbed unless they were clearly erroneous . . . .
[W]hether those facts constituted a violation of the peti-
tioner’s rights under the sixth amendment [however] is
a mixed determination of law and fact that requires the
application of legal principles to the historical facts of
[the] case. . . . As such, that question requires plenary
review by this court unfettered by the clearly erroneous
standard.’’ (Internal quotation marks omitted.) Carmon
v. Commissioner of Correction, 178 Conn. App. 356,
370, 175 A.3d 60 (2017), cert. denied, 328 Conn. 913,
180 A.3d 961 (2018).
‘‘In Brady v. Maryland, supra, 373 U.S. 87, the United
States Supreme Court held that the suppression by the
prosecution of evidence favorable to an accused upon
request violates due process where the evidence is
material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution. The
prosecution’s duty to disclose under Brady applies not
only to exculpatory evidence but also to impeachment
evidence, which is evidence having the potential to alter
the jury’s assessment of the credibility of a significant
prosecution witness. . . . To prove a Brady violation,
the petitioner must establish: (1) that the state sup-
pressed evidence (2) that was favorable to the defense
and (3) material either to guilt or to punishment. . . .
If the petitioner fails to meet his burden as to one of
the three prongs of the Brady test, then we must con-
clude that a Brady violation has not occurred.’’ (Cita-
tion omitted; internal quotation marks omitted.) Wil-
liams v. Commissioner of Correction, supra, 221 Conn.
App. 304.
 In the present case, because the respondent’s appel-
late counsel conceded during oral argument before this
court that Young’s notes were suppressed and does not
dispute that the notes were favorable to the defense, the
dispositive issue is whether that evidence was material.
‘‘The test for materiality is whether the suppressed evi-
dence in the context of the entire record creates a
reasonable probability that, had the evidence been dis-
closed to the defense, the result of the proceeding
would have been different. . . . [T]he mere possibility
that an item of undisclosed evidence might have helped
the defense or might have affected the outcome of the
trial, however, does not establish materiality in the con-
stitutional sense. . . . The question [of materiality] is
not whether the defendant would more likely than not
have received a different verdict with the evidence, but
whether in its absence he received a fair trial, under-
stood as a trial resulting in a verdict worthy of confi-
dence. A reasonable probability of a different result is
accordingly shown when the government’s evidentiary
suppression undermines confidence in the outcome of
the trial. . . . [W]here there is no reasonable probabil-
ity that disclosure of the exculpatory evidence would
have affected the outcome, there is no constitutional
violation under Brady.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) Id., 304–
305. In this respect, ‘‘[t]he test for materiality under
Brady and the test for prejudice under Strickland3 are
the same—with respect to both, the petitioner must
demonstrate that the alleged constitutional impropriety
gives rise to a loss of confidence in the original outcome
. . . .’’ (Footnote added.) Lapointe v. Commissioner
of Correction, 316 Conn. 225, 266–67, 112 A.3d 1 (2015).
The following additional facts, as undisputed in the
record, are necessary to our resolution of this claim. At
the petitioner’s criminal trial, the prosecutor questioned
Young on direct examination about his investigation,
which included talking to the petitioner about the vic-
tim’s accusations. Defense counsel then cross-exam-
ined Young, and, during a recess in the proceedings,
received from the prosecutor a copy of the notes that
Young had written during his conversation with the
petitioner. That copy appeared to be incomplete in that
the last word on it was ‘‘gir.’’ When the proceedings
resumed, the court asked defense counsel if he had
sufficient time during the recess to read the notes, to
which defense counsel responded: ‘‘I did. They’re fairly
straightforward.’’ Defense counsel continued cross-
examining Young, focusing on the number of girls that
the petitioner told Young had accompanied the victim
on the day of the 2003 incident, whether Young’s notes
used the singular ‘‘another girl’’ or the plural ‘‘another
girls,’’ and whether the copied notes were missing rele-
vant language.
After his criminal trial, the petitioner acquired a com-
plete copy of Young’s notes through a request pursuant
to the Freedom of Information Act, General Statutes
§ 1-200 et seq. That copy provides in relevant part on
the first line, ‘‘Remembers Girls. Her another girl,’’ and,
on the second line, ‘‘Painting Garage Doors.’’ The
respondent’s appellate counsel conceded during oral
argument before this court that the state had in fact
failed to disclose a complete copy of Young’s notes to
defense counsel during the criminal trial.
On appeal, the petitioner claims that Young’s notes
were material under Brady because they contained evi-
dence that impeached the victim’s testimony, which
was ‘‘the sole evidence offered in support of the peti-
tioner’s conviction . . . .’’ In particular, the petitioner
argues that ‘‘a dispute existed as to the complainant’s
ability to accurately recall and testify truthfully con-
cerning [the 2003 incident],’’ particularly regarding the
number of girls who accompanied the victim to paint
at the petitioner’s workplace that day. The petitioner
argues that the complete copy of Young’s notes, which
shows that he wrote ‘‘another girl,’’ in the singular,
would have corroborated the testimony of a defense
witness that only one girl other than the victim was at
the petitioner’s workplace that day, and discredited the
victim’s testimony that two other girls—her sister and
her friend—were present. According to the petitioner,
given that the victim’s testimony was ‘‘central’’ to the
state’s case, his ‘‘ability to adequately cast doubt on
her truthfulness and recall was paramount to establish
reasonable doubt.’’ The petitioner argues that Koch
‘‘should have recognized this meritorious issue and pur-
sued [it] on direct appeal.’’ We are not persuaded.
Although our Supreme Court ‘‘has stated many times
that when the prosecution’s case hinges entirely on the
testimony of certain witnesses, information affecting
their credibility is material’’; State v. White, 229 Conn.
125, 136–37, 640 A.2d 572 (1994); ‘‘[t]he seminal test
remains whether there exists a reasonable [probability]
that the outcome of the proceeding would have been
different had the evidence been disclosed to the
defense. . . . If the evidence in question would not
have provided the [petitioner] with any significant
impeachment material that was not already available
and used by him . . . it is immaterial under Brady.
This is true even if the [evidence’s] cumulative effect
may have lent some additional support to the [petition-
er’s] attack on [a witness].’’ (Internal quotation marks
omitted.) Williams v. Commissioner of Correction,
supra, 221 Conn. App. 316.
Here, we recognize that, given the lack of other cor-
roborating evidence of the petitioner’s guilt, whether
the complete copy of Young’s notes truly was cumula-
tive of other information available to the petitioner is
an important consideration. Moreover, we acknowledge
that the complete copy of Young’s notes, which was
inconsistent with Young’s testimony that the petitioner
had told him that two girls, in addition to the victim,
were on the scene, may ‘‘ ‘have lent some additional
support’ ’’ to defense counsel’s impeachment of both
Young and the victim. Id. Nonetheless, given defense
counsel’s thorough cross-examination of Young, we
conclude that any additional support would have been
minimal. Indeed, despite Young’s initial testimony that
the petitioner ‘‘told me, if I remember correctly, it was
several girls [painting that day] along with [the victim],’’
and his uncertainty about whether he in fact wrote
‘‘another girls’’ or ‘‘another girl,’’ Young admitted that
his notes were not consistent with his initial testimony.
The following colloquy took place between defense
counsel and Young on cross-examination:
‘‘Q. . . . With respect to that g-i-r, there’s a portion
that’s cut off that wasn’t photocopied properly, correct?
‘‘A. I would assume so. Yes.
‘‘Q. Okay. Do you assume that that other part missing
is the letter L, another girl?
‘‘A. I don’t know. It could be . . . L, it could be l-s.
Without the report—or, I’m sorry—my notes, I wouldn’t
know for sure.
‘‘Q. Okay. But it can’t—if you wrote her and another—
you wouldn’t write her and another girls?
‘‘A. Right. But I didn’t write and. I wrote her, another,
and I could have wrote girls; I was trying to write fast, so.
‘‘Q. But another girls isn’t proper English?
‘‘A. No, it’s not.
‘‘Q. Okay. So, he never told you there were three girls
there, fair to say?
‘‘A. [The petitioner] told me there were girls there,
several girls, if I remember correctly.
‘‘Q. That’s not what you have in your notes, though?
‘‘A. Correct.
‘‘Q. Okay. That’s what you may have written later on
at the police station when you wanted to write up a
report, but that’s not what you wrote in your notes,
correct?
‘‘A. I didn’t write that in my notes, no.’’
The fact that defense counsel achieved the same
result with an incomplete copy of the notes that he
would have with a complete copy—that is, an admission
from Young that his notes did not indicate that the
petitioner had told him that multiple girls in addition
to the victim were present on the day of the 2003 inci-
dent—supports our conclusion that defense counsel
effectively impeached Young’s earlier testimony that
the petitioner told him several girls were present. We
cannot say there is a reasonable probability that further
impeachment of Young’s testimony using the complete
copy of the notes would have altered the outcome of
the petitioner’s criminal trial. Accordingly, because the
suppressed evidence was not material, a Brady viola-
tion did not occur, and the petitioner thus cannot estab-
lish that he was prejudiced by Koch’s failure to raise
that claim on direct appeal. See Robinson v. Commis-
sioner of Correction, 204 Conn. App. 560, 571 n.5, 253
A.3d 1040 (‘‘[b]ecause the proffered evidence is not
material, the habeas court correctly concluded that the
petitioner did not suffer prejudice from his prior habeas
counsel’s failure to investigate and present the allegedly
suppressed documents’’), cert. denied, 337 Conn. 903,
252 A.3d 363 (2021).
2
The petitioner next claims that Koch rendered inef-
fective assistance by failing to raise a claim that, during
rebuttal argument to the jury, the prosecutor improp-
erly ‘‘interjected his personal opinion concerning the
veracity of the petitioner’’ by stating that the petitioner
had ‘‘made a mistake. He told Detective Young some
BS about maybe he shouldn’t have been wrestling.’’
(Emphasis omitted.) Because the petitioner’s prosecu-
torial impropriety claim fails as a matter of law, we
conclude that the petitioner was not prejudiced by
Koch’s failure to raise that claim on direct appeal.
The following legal principles govern claims of prose-
cutorial impropriety. ‘‘[A] claim of prosecutorial impro-
priety . . . even in the absence of an objection, has
constitutional implications and requires a due process
analysis under State v. Williams, 204 Conn. 523, 535–40,
529 A.2d 653 (1987). . . . In analyzing claims of prose-
cutorial impropriety, we engage in a two step process.
. . . The two steps are separate and distinct: (1)
whether [an impropriety] occurred in the first instance;
and (2) whether that [impropriety] deprived a defendant
of his due process right to a fair trial. Put differently,
[impropriety] is [impropriety], regardless of its ultimate
effect on the fairness of the trial; whether that [impro-
priety] [was harmful and thus] caused or contributed
to a due process violation is a separate and distinct
question. . . . The defendant bears the burden of satis-
fying both of these analytical steps. . . . In evaluating
whether a defendant has carried that burden, we recog-
nize that prosecutorial inquiries or comments that might
be questionable when read in a vacuum often are,
indeed, appropriate when review[ed] . . . in the con-
text of the entire trial.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) State v.
O’Brien-Veader, 318 Conn. 514, 523–24, 122 A.3d 555
(2015).
This court previously has recognized that prosecu-
torial impropriety may occur during the cross-examina-
tion of witnesses or in closing arguments. See Valentine
v. Commissioner of Correction, supra, 219 Conn. App.
298 (closing arguments); State v. McLaren, supra, 127
Conn.App.81 (cross-examinationofwitnesses).‘‘[B]ecause
closing arguments often have a rough and tumble qual-
ity about them, some leeway must be afforded to the
advocates in offering arguments to the jury in final
argument. [I]n addressing the jury, [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, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from. . . . Moreover, [i]t does not follow . . . that
every use of rhetorical language or device [by the prose-
cutor] is improper. . . . The occasional use of rhetori-
cal 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.
. . . While the privilege of counsel in addressing the
jury should not be too closely narrowed or unduly ham-
pered, 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.’’ (Citation omitted; internal
quotation marks omitted.) Valentine v. Commissioner
of Correction, supra, 219 Conn. App. 298–99.
The following additional facts, as undisputed in the
record, are relevant to our resolution of the petitioner’s
claim. During the petitioner’s criminal trial, the follow-
ing colloquy occurred between the prosecutor and
Young regarding the conversation Young had with the
petitioner at the petitioner’s workplace:
‘‘A. . . . [W]e identified ourselves as police officers,
and we requested to speak with the foreman.
‘‘Q. What happens then?
‘‘A. One of the gentlemen stopped working, came up
and asked if he could help us . . . . He said that the
foreman was out to lunch at the time and asked if he
could help us. I said, what’s your name, and he identified
himself as [the petitioner], and then I told him that we
were actually there to speak with him.
‘‘Q. Prior to that last statement by you that we’re
actually here to speak with you, sir, prior to that,
describe [the petitioner’s] mood and demeanor—actu-
ally, demeanor is probably better.
‘‘A. He was pleasant. He seemed like he just wanted
to help us out.
‘‘Q. The minute that you say you’re there to speak
with him, what happens?
‘‘A. Well, nothing at first. We brought him over—
away from the other gentleman that was working there
and then I told him that I was there to talk to him about
an allegation that [the victim] had made that she had
been inappropriately touched by him, and that’s when
his demeanor completely changed.
‘‘Q. How did it change? Only with that information,
how did it change?
‘‘A. Okay. His hands began to shake; he began to start
to say something, and he would stutter; he couldn’t
finish a sentence. He was very nervous.
‘‘Q. What happens next?
‘‘A. He started to say, well, I shouldn’t have done,
and then he stopped midsentence, and he started to
tell me about a wrestling story with him and [the victim]
where he had slapped her on the butt, is what he said.
‘‘Q. So, you haven’t asked him a question yet?
‘‘A. No.
‘‘Q. And he says, I shouldn’t have done [that], and
then starts telling you this story?
‘‘A. That’s correct.’’
On the basis of this testimony, the prosecutor stated
during rebuttal argument to the jury: ‘‘Young goes to
see [the petitioner] unannounced. Why? Because if you
go see someone right away, they don’t have time to
prepare a story, and you get to see their face and you
get to see how they react, their demeanor, when they’re
confronted with the fact that the only confrontation
initially—we have a report that you may have inappro-
priately touched your niece. Boom, Mr. Jovial; can I
help you guys? What brings you by? He became panic
stricken. Dumbfounded, maybe. The first thing out of
his mouth is not, this is outrageous; I would never have
done such a thing. It’s, oh, maybe I shouldn’t have done
it. There was this time we were wrestling. He doesn’t
know what . . . Young knows. So, the classic response
is to come up with a scenario that you can try and
explain. He made a mistake. He told . . . Young some
BS about maybe he shouldn’t have been wrestling. Why?
Because he’s hoping that’s all . . . Young knows. We
all know now Young knew a lot more than that.’’
(Emphasis added.)
On appeal, the petitioner argues that, because he
‘‘never testified and there was no evidence admitted
that [his] statement to Young was not truthful . . .
there was no evidence from which the jury could rea-
sonably infer that the petitioner lied to Young,’’ and, it
was therefore ‘‘improper for [the prosecutor] to inter-
ject his own opinion about the petitioner’s credibility.’’
(Citation omitted.) In response, the respondent argues
that ‘‘it is clear from the context in which [the prosecu-
tor’s comment] was made that the prosecutor was not
proffering his personal opinion regarding the credibility
of the petitioner’s statements to Young or of the peti-
tioner generally but was drawing reasonable inferences
from the evidence and, specifically, Young’s testimony.’’
We agree with the respondent.
The petitioner accurately states the law that ‘‘[t]he
prosecutor may not express his own opinion, directly
or indirectly, as to the credibility of the witnesses . . .
[n]or . . . express his opinion, directly or indirectly,
as to the guilt of the defendant.’’ (Internal quotation
marks omitted.) State v. Singh, 259 Conn. 693, 713, 793
A.2d 226 (2002). At the same time, however, ‘‘[i]t is
not improper for the prosecutor to comment upon the
evidence presented at trial and to argue the inferences
that the jurors might draw 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 contin-
ually emphasizing that he [or she] is simply saying I
submit to you that this is what the evidence shows, or
the like.’’ (Internal quotation marks omitted.) State v.
Stevenson, 269 Conn. 563, 583–84, 849 A.2d 626 (2004).
Additionally, it ‘‘is well established that a prosecutor
may argue about the credibility of witnesses, as long
as [his] assertions are based on evidence presented at
trial and reasonable inferences that jurors might draw
therefrom. . . . The prosecutor may also make these
arguments with respect to the credibility of statements
by the defendant himself, so long as they are rooted in
the evidence at trial. See, e.g. . . . State v. Smalls, 78
Conn. App. 535, 542–43, 827 A.2d 784 (prosecutor may
properly comment on defendant’s voluntary pretrial
statements if the defendant relies on those statements
for a defense and comment does not burden defendant’s
right not to testify), cert. denied, 266 Conn. 931, 837
A.2d 806 (2003).’’ (Citations omitted; internal quotation
marks omitted.) State v. O’Brien-Veader, supra, 318
Conn. 547–48.
Here, the prosecutor’s suggestion that the petitioner
was lying to Young was a proper argument rooted in
the evidence presented at trial. The jury heard Young
testify that the petitioner appeared to be ‘‘very nervous’’
when Young confronted him about the victim’s accusa-
tions and that the petitioner subsequently denied those
accusations, and the jury also heard the victim testify
as to the truth of those accusations. From this testi-
mony, the jury reasonably could have inferred that the
petitioner was nervous when he spoke with Young not
because, as defense counsel implied during closing
argument, it is natural to ‘‘get nervous when a police
officer stops you,’’ especially when confronted with an
allegation of sexual assault, but, instead, because the
victim’s accusations were true, and the petitioner’s
wrestling explanation was a lie, or as the prosecutor
phrased it, ‘‘BS,’’ that was intended to convince Young
that nothing more had transpired between the petitioner
and the victim. The prosecutor was therefore asking
the jury to draw a reasonable inference in the state’s
favor based on the evidence at trial, namely, that the
victim’s version of events was true and the petitioner’s
was not. Although the prosecutor’s use of ‘‘BS’’ was
inartful and unnecessary, it was not improper but,
instead, was a fair comment on the evidence. See State
v. Fauci, 282 Conn. 23, 39, 917 A.2d 978 (2007) (‘‘in a
case that essentially reduces to which of two conflicting
stories is true, it may be reasonable to infer, and thus
to argue, that one of the two sides is lying’’).
Accordingly, because we conclude that the prosecu-
tor’s statement was not improper and that the petition-
er’s prosecutorial impropriety claim thus lacks merit,
the petitioner cannot establish that he was prejudiced
by Koch’s failure to raise that claim on appeal.
II
The petitioner next claims that the court erroneously
concluded that Koch did not render ineffective assis-
tance by failing to raise on direct appeal two other
claims of prosecutorial impropriety that allegedly
occurred during the petitioner’s criminal trial. Specifi-
cally, the petitioner claims that the prosecutor improp-
erly (1) referred to the complainant as the ‘‘victim’’
throughout the trial in violation of a court order and
(2) identified a member of the trial audience as the
third girl on the scene of the 2003 incident in an attempt
to bolster the credibility of the victim and Young.
The following legal principles regarding claims of
ineffective assistance of appellate counsel inform our
analysis. ‘‘The first part of the Strickland analysis
requires the petitioner to establish that appellate coun-
sel’s representation fell below an objective standard of
reasonableness considering all of the circumstances.
. . . [A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reason-
able professional assistance; that is, the [petitioner]
must overcome the presumption that, under the circum-
stances, the challenged action might be considered
sound [appellate] strategy. . . . The right to counsel is
not the right to perfect representation. . . . [Although]
an appellate advocate must provide effective assis-
tance, he is not under an obligation to raise every con-
ceivable issue. A brief that raises every colorable issue
runs the risk of burying good arguments . . . in a ver-
bal mound made up of strong and weak contentions.
. . . Indeed, [e]xperienced advocates since time
beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focus-
ing on one central issue if possible, or at most on a
few key issues.’’ (Internal quotation marks omitted.)
Valentine v. Commissioner of Correction, supra, 219
Conn. App. 288–89. ‘‘The determination of which issues
to present, and which issues not to present, on an appeal
is by its nature a determination committed to the exper-
tise of appellate counsel, and not to his client. . . . [A]
habeas court will not, with the benefit of hindsight,
second-guess the tactical decisions of appellate coun-
sel.’’ (Citation omitted; internal quotation marks omit-
ted.) Camacho v. Commissioner of Correction, 148
Conn. App. 488, 496, 84 A.3d 1246, cert. denied, 311
Conn. 937, 88 A.3d 1227 (2014). Additionally, as pre-
viously noted in this opinion, ‘‘the second prong [of
Strickland] considers whether there is a reasonable
probability that, but for appellate counsel’s failure to
raise the issue on appeal, the petitioner would have
prevailed in his direct appeal . . . [which] requires the
reviewing court to [analyze] the merits of the underlying
claimed error in accordance with the appropriate appel-
late standard for measuring harm.’’ (Internal quotation
marks omitted.) Valentine v. Commissioner of Correc-
tion, supra, 289–90.
A
The petitioner first claims that Koch rendered ineffec-
tive assistance by failing to raise a claim on appeal
that the prosecutor’s repeated use of the term ‘‘victim’’
during trial in violation of a court order was improper
and deprived the petitioner of his right to a fair trial.
We are not persuaded.
The following additional facts, as set forth by this
court in the petitioner’s prior habeas appeal, are rele-
vant to our review of this claim. ‘‘Prior to the com-
mencement of trial, the petitioner’s [defense] counsel
filed a motion with the court to prohibit the use of the
word ‘victim’ by either party. The court granted the
motion in limine and cautioned all parties to refrain
from addressing the complainant as the ‘victim.’ During
the course of the trial, however, both the prosecutor
and the petitioner’s [defense] counsel sporadically used
the word ‘victim’ when referencing the complainant in
the presence of the jury. The prosecutor referred to
the complainant as the ‘victim’ on six occasions and
[defense] counsel did so twice. [Defense] counsel did
not object to the prosecutor’s violation of the court
order or request a curative instruction from the court.’’
Donald G. v. Commissioner of Correction, supra, 203
Conn. App. 70. This court upheld the first habeas court’s
decision that defense counsel did not render ineffective
assistance by referring to the complainant as the ‘‘vic-
tim’’ or by failing to object to or request a curative
instruction following the prosecutor’s similar refer-
ences. Id., 72–73. This court resolved the petitioner’s
claim of ineffective assistance of trial counsel on the
prejudice prong of Strickland without addressing the
performance prong, reasoning that, ‘‘although both the
state and [defense] counsel inappropriately referred to
the complainant as the victim, neither did so consis-
tently. Both parties predominately identified the wit-
ness either as the complainant or by use of her initials.
There is simply no support for the petitioner’s assertion
that, but for [defense] counsel’s use of the word ‘victim’
on two occasions throughout the entirety of the trial
proceeding, or his failure to object or to request a cura-
tive instruction after the prosecutor made similar refer-
ences, it is reasonably likely that the outcome of the
trial would have been different. This conclusion is but-
tressed by the fact that the petitioner in fact was acquit-
ted of one of the charges against him. If the jury had
been improperly influenced by these references to the
victim, presumably it would not have acquitted the peti-
tioner of one of the charges.’’ Id.
Consistent with this court’s reasoning in the petition-
er’s prior habeas appeal, in the present case, Koch testi-
fied that ‘‘the evidence overall was so powerful that I
didn’t think that people saying the word, victim, a few
times was going to get us anywhere. And also because
[the petitioner was] acquitted on one count of sexual
assault in the first degree, which seems to show to me
that the jury didn’t necessarily think of the complainant
as a victim to the point that they could just blindly
convict [him] because somebody called her a victim
inadvertently in the courtroom.’’
On the basis of this testimony, the habeas court found
that Koch ‘‘did not view the use of the term ‘victim’ as
a strong issue to pursue on direct appeal.’’ The court
thereafter concluded that, ‘‘[g]iven the claim raised in
the prior habeas, as affirmed by the Appellate Court
. . . this claim was not one that reasonably competent
appellate counsel should raise. Therefore, as applied
to the petitioner’s allegation that appellate counsel was
ineffective for failing to raise a claim on direct appeal
challenging the use of the term ‘victim’ during the crimi-
nal trial, the court concludes that the petitioner has
failed to prove both prongs of the [Strickland] test.
There is no evidence establishing that [appellate coun-
sel] rendered deficient performance on this basis. Even
if this court were to assume deficient performance,
there is no prejudice.’’
On appeal, the petitioner, addressing the factors used
to determine whether a prosecutorial impropriety
deprived a defendant of a fair trial; see State v. Williams,
supra, 204 Conn. 540;4 argues that the prosecutor’s use
of the term ‘‘victim’’ was not invited by the defense,
was severe, frequent and central to critical issues in
the case because the term ‘‘victim’’ has intrinsic poten-
tial for prejudice where allegations of sexual assault
are raised, and that the prosecutor’s use of that term
was not mitigated by any curative measures by the
court. Last, the petitioner asserts that the state’s case
against him was not particularly strong because it
hinged on the victim’s credibility, as to which there
were already significant issues.
The respondent concedes that the prosecutor ‘‘may
have improperly used the term ‘victim’ in light of the
trial court’s order precluding use of that term’’ but nev-
ertheless argues that ‘‘any claim that the petitioner
[was] deprived of a fair trial as a result of the prosecu-
tor’s use [is] meritless.’’ According to the respondent,
under the circumstances, ‘‘it is highly unlikely that the
jury even later recalled, let alone [was] swayed by,’’
the prosecutor’s use of the term ‘‘victim’’ during the
evidentiary portion of the trial, and ‘‘the jury reasonably
would have interpreted the prosecutor’s sporadic use
of the term [during closing argument] as argument con-
cerning what the evidence revealed and not as any
improper personal opinion regarding the victim’s credi-
bility or the petitioner’s guilt.’’
Although ‘‘a court’s repeated use of the word victim
with reference to the complaining witness is inappropri-
ate when the issue at trial is whether a crime has been
committed . . . [a] different set of circumstances
exists when the person making reference to the com-
plaining witness is the prosecutor. . . . This is so, our
courts have held, for two basic reasons. First, although
a prosecutor’s reference to the complainant as the ‘vic-
tim,’ in a trial where her alleged victimization is at issue,
risks communicating to the jury that the prosecutor
personally believes that she in fact is a victim, and thus
the defendant is guilty of victimizing her, the isolated
or infrequent use of that term in a trial otherwise devoid
of appeals to passion or statements of personal belief
by the prosecutor will probably be understood by jurors
to be consistent with the prosecutor’s many proper
references to the complainant as the complainant or
the alleged victim, particularly where the prosecutor
openly acknowledges and willingly accepts the state’s
burden of proving the defendant guilty beyond a reason-
able doubt solely on the basis of the evidence admitted
at trial. Second, when a prosecutor uses that term in
argument, where his or her role is generally expected
and understood to be that of an advocate, such isolated
or infrequent references to the complainant as the ‘vic-
tim’ are likely to be understood by jurors as parts of a
proper argument that the evidence has established the
complainant’s victimization, and thus the defendant’s
guilt, beyond a reasonable doubt. In either of those
circumstances, the prosecutor’s use of the term ‘victim’
in reference to the complainant is not considered
improper because such usage does not illicitly ask the
jury to find the defendant guilty on the basis of the
prosecutor’s personal belief in the complainant’s vic-
timization or the defendant’s guilt.’’ (Citation omitted;
emphasis in original; internal quotation marks omitted.)
State v. Williams, 200 Conn. App. 427, 434–35, 238 A.3d
797, cert. denied, 335 Conn. 974, 240 A.3d 676 (2020).
‘‘Notwithstanding our courts’ willingness . . . to
excuse a prosecutor’s rare and infrequent use of the
term ‘victim’ to describe the complainant in a criminal
trial, our Supreme Court has expressly admonished
prosecutors to refrain from making excessive use of
that term because of its obvious potential for preju-
dice.’’ State v. Thompson, 146 Conn. App. 249, 269, 76
A.3d 273, cert. denied, 310 Conn. 956, 81 A.3d 1182
(2013).
On the basis of our review of the record, we agree
with the habeas court’s conclusions that Koch acted
reasonably in determining not to raise this claim on
appeal and that the petitioner was not prejudiced by
that decision. In the context of the entire trial, the
prosecutor’s use of the terms ‘‘victim’’ and ‘‘victimiza-
tion’’ was neither so frequent nor so severe as to deprive
the petitioner of a fair trial.
In total, over the course of a five day trial that culmi-
nated in hundreds of transcript pages, there were only
six references to the term ‘‘victim’’ or ‘‘victimization’’
by the prosecutor, which were sporadically mixed in
among his numerous proper references to the victim
as the ‘‘complainant,’’ the ‘‘complaining witness,’’ or by
her initials. Given this ratio and considering the con-
texts in which the term was used, the alleged improprie-
ties were infrequent and not consistent. As this court
similarly noted in the petitioner’s prior habeas appeal,
‘‘although both the state and [defense] counsel inappro-
priately referred to the complainant as the victim, nei-
ther did so consistently. Both parties predominately
identified the witness either as the complainant or by
use of her initials.’’ Donald G. v. Commissioner of Cor-
rection, supra, 203 Conn. App. 72; see also State v.
Olivero, 219 Conn. App. 553, 594, 295 A.3d 946 (prosecu-
tor’s fourteen uses of term ‘‘ ‘victim’ ’’ during evidentiary
portion of trial and closing argument ‘‘was not frequent
when compared to the entirety of the trial, which was
six days and culminated in approximately 900 transcript
pages’’), cert. denied, 348 Conn. 910, 303 A.3d 10 (2023).
Moreover, the alleged improprieties were not ‘‘bla-
tantly egregious . . . .’’ State v. Fauci, supra, 282 Conn.
51; id. (‘‘[b]eyond defense counsel’s failure to object,
in determining the severity of prosecutorial impropri-
ety, we look to whether the impropriety was blatantly
egregious or inexcusable’’). On the basis of our review
of the record, the prosecutor’s ‘‘words . . . were not
accompanied by other expressions of opinion as to the
defendant’s guilt’’ but, instead, appear to have been
‘‘mostly ill-chosen short-form references to the com-
plainant, whom [the prosecutor] most commonly
referred to during trial as the complainant . . . or by
her initials . . . .’’ State v. Thompson, supra, 146 Conn.
App. 273. Notably, Koch testified that he believed that
the parties’ references to the term ‘‘victim’’ during trial
were generally inadvertent.
Finally, although the court did not provide specific
curative instructions to the jury, the court repeatedly
gave the jury general instructions not to consider the
statements and arguments of counsel as evidence,
including prior to the evidentiary portion of trial, and
both before and after closing arguments. Given that the
jury is presumed to follow instructions given by the
court, ‘‘[t]hese general instructions were more than ade-
quate to counteract any harm resulting from the alleged
improprieties.’’ State v. Olivero, supra, 219 Conn. App.
595; see id. (court repeatedly instructed jury that coun-
sel’s arguments were not evidence, jurors were sole
judges of credibility, and jurors must confine them-
selves to evidence in record). Additionally, the prosecu-
tor expressly acknowledged the state’s burden of proof
beyond a reasonable doubt numerous times throughout
closing arguments, stating at the start of his closing
argument, for example, that ‘‘I need to be able to show
you beyond a reasonable doubt that each element [of
the charge] was met. If I don’t, you are to acquit him
on that charge; if I do, you should convict,’’ and stating
during rebuttal argument that whether the inconsisten-
cies between the victim’s testimony and the testimony
of a defense witness ‘‘give [the jury] reasonable doubt
. . . [is] up to [the jury] to decide.’’ This makes it espe-
cially unlikely that the jury was unduly swayed by the
prosecutor’s sporadic use of the term ‘‘victim.’’ See also
State v. Olivero, supra, 595 (prosecutor began closing
argument by informing jury that it, and not prosecutor,
trial counsel or judge, was fact finder).
This conclusion draws further support from the jury’s
verdict finding the petitioner not guilty on the count of
sexual assault in the first degree that stemmed from
the 2008 Christmas party incident. See State v. Courtney
G., supra, 339 Conn. 365 (jury’s verdict of not guilty on
some charges ‘‘clearly demonstrat[es] the jurors’ ability
to filter out the allegedly improper statements and make
independent assessments of credibility’’ and ‘‘is a strong
indication that the defendant was not prejudiced by
prosecutorial impropriety’’ (internal quotation marks
omitted)). As this court concluded in the petitioner’s
prior habeas appeal, ‘‘[i]f the jury had been improperly
influenced by these references to the victim, presum-
ably it would not have acquitted the petitioner of one
of the charges.’’ Donald G. v. Commissioner of Correc-
tion, supra, 203 Conn. App. 73.
Accordingly, we agree with the habeas court’s conclu-
sion that Koch’s decision not to raise this claim of
prosecutorial impropriety neither constituted deficient
performance nor prejudiced the petitioner.
B
The petitioner next claims that Koch rendered inef-
fective assistance by failing to raise a claim on appeal
that, during rebuttal argument to the jury, the prosecu-
tor improperly proffered unsworn testimony by identi-
fying the victim’s sister, the third girl who allegedly was
present during the 2003 incident, in the trial audience.
We agree with the habeas court’s conclusion that the
petitioner failed to establish both that Koch performed
deficiently by failing to raise this claim and that a rea-
sonable probability existed that the petitioner would
have prevailed on appeal but for that failure.
The following additional facts set forth in the habeas
court’s memorandum of decision are relevant to our
resolution of this claim. ‘‘On the first day of the criminal
trial . . . the victim testified that she, her sister . . .
and her friend . . . went to the petitioner’s garage to
help him paint. . . . [The victim] at some point was
painting upstairs with the petitioner while [the sister]
and [the friend] were downstairs painting. [The victim]
described the petitioner sexually assaulting her when
she was alone with him upstairs while the other two
were downstairs. [The sister] and [the friend] did not
testify in the criminal trial. During the state’s rebuttal
arguments, the prosecutor summarized [the victim’s]
testimony [about] her sister and friend [being] at the
garage. The prosecutor stated that [the sister] was sit-
ting right there, presumably in the courtroom. . . .5 The
context in which the prosecutor referred to [the victim]
and the two other girls was to contrast [the victim’s]
trial testimony with that of a defense witness . . . who
testified that he only saw two girls. Thus, the prosecutor
was highlighting inconsistent testimony about how
many girls were present in the garage on the day [the
victim] testified the one sexual assault occurred.’’ (Cita-
tions omitted; footnote added.)
The court further found that, at the habeas trial, the
prosecutor provided no explanation for his closing argu-
ments. Additionally, the court found that Koch ‘‘could
not recall if [the sister] testified and noted that tran-
scripts do not necessarily reflect nonverbal events dur-
ing a trial. The transcript of the state’s rebuttal argu-
ment, while reflecting that the prosecutor referenced
[the sister], is silent as to any physical indication of
who [the sister] is or where she is sitting. . . . Koch
also could not recall if he considered raising a claim
based on these events, as well as why he did not [raise]
such a claim if he had considered it and could only
describe his general strategy of raising claims that had
‘some traction.’ ’’
Accordingly, the habeas court concluded that,
‘‘[g]iven this paucity of evidence . . . the petitioner has
failed to affirmatively show that . . . Koch rendered
deficient performance by not raising a claim on appeal
regarding the prosecutor’s alleged gesture. Further-
more, the petitioner has also not shown that he would
have prevailed on appeal had such a claim been raised.’’
The petitioner argues that the court’s conclusion was
improper because the court’s ‘‘focus on the lack of
testimony from [the prosecutor] was misdirected, as
such testimony would be irrelevant to the petitioner’s
claim. Rather, the petitioner’s claim related to Koch’s
failure to raise this instance of impropriety on appeal
upon the record available to [him] at the time that he
represented the petitioner.’’ According to the petitioner,
the record available to Koch when he represented the
petitioner on appeal indicated that the prosecutor
‘‘referred to the purported identity and presence of [the
victim’s] younger sister . . . at trial during closing
arguments, expressing to the jury his own secret knowl-
edge of identification evidence that was not admitted
during the course of the trial. . . . This conduct was
improper,’’ and Koch rendered ineffective assistance
when he failed to raise that issue on appeal.
The respondent argues that it is unclear whether the
prosecutor’s conduct was improper. According to the
respondent, in the absence of any indication in the trial
transcripts that the prosecutor pointed or gestured to
anyone in the trial audience, it is equally possible that
the prosecutor’s statement was simply an inartful argu-
ment that the defense witness’ testimony was not credi-
ble because, if that witness had actually been present
at the scene of the 2003 incident, he could not have
missed the sister, ‘‘ ‘who [was] sitting right there’ at the
crime scene.’’ We agree with the respondent that the
prosecutor’s remark was ambiguous and conclude,
therefore, that reasonably competent counsel may not
have interpreted it as giving rise to a valid prosecutorial
impropriety claim.
Moreover, even if Koch had argued on appeal that
this statement constituted prosecutorial impropriety,
that argument was unlikely to have been successful.
Assuming that the prosecutor pointed or gestured to
the sister to indicate that the sister was ‘‘ ‘sitting right
there,’ ’’ at the petitioner’s criminal trial, the statement
had minimal, if any, prejudicial effect. The only new
information the statement suggested was that the sister,
whom the victim claimed had accompanied her to the
petitioner’s workplace on the day of the 2003 incident,
was a real person and that she was present at the peti-
tioner’s trial. This information was unlikely to have had
any meaningful impact on the jury because only the
sister’s presence during the 2003 incident, not the fact
that she was a real person, was a disputed fact that
was central to a critical issue in the case. Contrary to
the petitioner’s argument, the prosecutor’s knowledge
of the sister’s presence at the trial would not serve to
corroborate the victim’s testimony that the sister was
present during the 2003 incident. Additionally, defense
counsel did not object to this statement, which suggests
that he did not believe it was so severe that it risked
depriving the petitioner of a fair trial, and the prosecutor
made such a passing reference on only one discrete
occasion. See State v. Fauci, supra, 282 Conn. 51.
Thus, it would not have been unreasonable for Koch
to conclude that this claim lacked ‘‘ ‘traction,’ ’’ nor is
there any likelihood that this claim would have suc-
ceeded on appeal had Koch raised it. Accordingly, we
agree with the habeas court that the petitioner has failed
to prove both that Koch performed deficiently by failing
to raise this claim on appeal and that the petitioner was
prejudiced by that failure.6
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to use the petitioner’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The petitioner claimed on direct appeal that the prosecutor committed
two instances of impropriety that are separate from the improprieties that
the petitioner challenges in the present appeal. See State v. Donald H. G.,
supra, 148 Conn. App. 420.
2
Given its conclusion as to the first and second issues, the habeas court
concluded that no articulation was necessary as to the third issue.
3
Under the two part analysis for reviewing claims of ineffective assistance
of appellate counsel; see Strickland v. Washington, supra, 466 U.S. 687; a
court determines under the prejudice prong ‘‘whether there is a reasonable
probability that, but for appellate counsel’s failure to raise the issue on
appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal
of his conviction or granting of a new trial.’’ (Internal quotation marks
omitted.) Valentine v. Commissioner of Correction, supra, 219 Conn.
App. 289–90.
4
‘‘[O]ur determination of whether any improper conduct by the [prosecu-
tor] violated the defendant’s fair trial rights is predicated on the factors set
forth in State v. Williams, supra, 204 Conn. 540 . . . . These factors include:
[1] the extent to which the [impropriety] was invited by defense conduct
or argument . . . [2] the severity of the [impropriety] . . . [3] the frequency
of the [impropriety] . . . [4] the centrality of the impropriety to the critical
issues in the case . . . [5] the strength of the curative measures adopted
. . . and [6] the strength of the state’s case.’’ (Internal quotation marks
omitted.) State v. O’Brien-Veader, supra, 318 Conn. 549.
5
The prosecutor argued during rebuttal in relevant part: ‘‘The rest has
been placed before you in painstaking detail. Hey, she said three girls on
the stand. [Her friend], her sister . . . who is sitting right there, as well
as herself; three girls. But [the defense witness], who doesn’t remember
what day it is, says two girls. Is that inconsistency enough? Does that give
you reasonable doubt? That’s up to you to decide.’’ (Emphasis added.)
6
As to the petitioner’s claims regarding the prosecutor’s identification of
the sister and use of the term ‘‘victim,’’ the petitioner argues that the habeas
court erred by deciding these issues separately because ‘‘the cumulative
effect of the petitioner’s claimed improprieties must be analyzed together.’’
The petitioner is correct that, under the second part of the analysis in State
v. Williams, supra, 204 Conn. 540; see part I C 2 of this opinion; the court
must assess ‘‘whether there is a reasonable likelihood that the jury’s verdict
would have been different absent the sum total of the improprieties.’’ (Inter-
nal quotation marks omitted.) State v. Angel T., 292 Conn. 262, 287, 973
A.2d 1207 (2009). Nonetheless, given that neither impropriety the petitioner
alleged was particularly egregious, frequent, or necessarily even improper
under the first part of that analysis, our conclusion remains the same even
if we consider the cumulative effect of the alleged improprieties on the
fairness of the petitioner’s criminal trial.